IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.07.2010 CORAM: THE HONOURABLE MR.JUSTICE PRABHA SRIDEVAN and THE HONOURABLE MR.JUSTICE G.M.AKBAR ALI W.P. No.10000/2010 1.J.Sundara 2.A.Viajaya Girija ... petitioners Vs. 1.The Union of India rep. By the General Manager, Engine Factory, Avadi Chennai 54. 2.The Junior Works Manager (Admn.) Engine Factory, Avadi, Chennai-54. 3.The Ordnance Factory Board, rep. By its Chairman & Director General, 10-A, S.K.Bose Road, Kolkatta, 700 001. 4.A.N.Suresh, working as UDC, Engine Factory, Avadi, Chennai-54. 5.The Central Administrative Tribunal, Madras Bench, rep. By its Registrar, High Court, Madras. ... Respondents Writ petition filed under Article 226 of the Constitution of India for a Writ of Certiorari to call for the records relating to order in O.A.No.873/2009 dated 23.04.2010 passed by the fifth respondent and quash the same. For petitioner : Mr.P.V.S.Giridhar For Respondents : Mr.Damodaran, for respondents 1 to 3. Mr.Karthik Kukundan, for R-4 ORDER
(Order of the Court was made by PRABHA SRIDEVAN)
The writ petitioners are aggrieved by the order of the tribunal setting aside their promotion and directing the respondents 1 to 3 to notify fresh vacancy position and conduct limited departmental competitive exam as per law.
2. The petitioners are Upper Division Clerks [for short, ‘UDC’] in the Engine Factory, Avadi. Besides the usual avenue of promotion, they have further promotion to the higher post of Chargeman Grade II. As per the rules, UDC are entitled to participate in the Limited Departmental Competitive Examination [LDCE] to the post of Chargeman Grade-II. 25% of the vacancies in the post of Chargeman Grade-II will be filled up by persons who successfully complete the LDCE together with two years of experience in the grade.
3. According to the petitioners, they possess all the technical qualifications which have been fixed as the criteria for the post of Chargeman. In 2007, by notification dated 30.05.2007, vacancies in the post of Chargeman Grade II, through LDCE was declared. Number of vacancies notified was only one, coming under the un-reserved category. Since only one vacancy was to be filled up, no one was appointed.
4. By subsequent notification dated 03.07.2008, three vacancies were notified for the post of Chargeman and examination was conducted. The fourth respondent along with the petitioners herein appeared in the examination. The first respondent appointed the first three persons from the merit list. But, however, the fourth respondent came to understand that the first respondent was proposing to make further appointments in subsequent vacancies which had arisen in the post of Chargeman Grade-II from the merit list prepared on the basis of LDCE held for the year 2008. Since no further notification was issued for holding a LDCE, the fourth respondent gave a representation which was rejected. An order was passed on 06.03.2009 appointing the petitioners herein as Chargeman Grade II on the basis of the merit list/panel prepared pursuant to the 2008 LDCE. The fourth respondent challenged this appointment by way of original appointment in O.A.No.873/2009 before the Central Administrative Tribunal, Chennai and the O.A. was allowed. Challenging the said order, the present writ petition has been filed.
5. The learned counsel for the petitioners submitted that three candidates S.Murugesan; R.Ganesh; M.Vasu, who occupied the first three places in the merit list, were appointed as against three vacancies. The first petitioner secured fourth place and the second petitioner stood fifth and the fourth respondent got eighth place.
6. The learned counsel submitted that the vacancies against which the petitioners were appointed were not future vacancies but backlog vacancies. The learned counsel also drew our attention to the reply statement filed by the first respondent that there are two backlog vacancies in the LDCE and only to rectify the error committed by them, they filled up the backlog vacancies by appointing the petitioners from the merit list since they have secured fourth and fifth position. The learned counsel submitted that there is no illegality in the procedure adopted by the first respondent and therefore, prayed that the writ petition should be allowed.
7. The learned counsel relied on Prem Singh v. Haryana State Electricity Board, (1996) 4 SCC 319; Municipal Corpn., Jabalpur v. Om Prakash Dubey, (2007) 1 SCC 373; Government of A.P. v. K. Brahmanandam, 2008(5) SCC 241; Virender S.Hooda and others vs.State of Haryana and another, [1999 (3) SCC 696]; Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637.
8. The learned counsel for the fourth respondent submitted that when three vacancies were notified for conduct of the LDCE for the year 2008 and those three posts were filled up, the list lapsed. The list cannot be held to survive so that the respondents can appoint whoever is wait-listed for future vacancies. The learned counsel submitted that in the reply given by the first respondent, they have only stated that during December 2008, subsequent to the notification, they reviewed the vacancy position and discovered that there was a backlog. The learned counsel submitted that the appointment of petitioners is not in accordance with law. It is illegal and there was lack of transparency which would give room to manipulation in appointment. The learned counsel also relied on Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637 and State of Punjab vs. Raghbir Chand Sharma and another [2002(1) SCC 113].
9. Copy of the notification dated 3.7.2008 is enclosed in the typed set of papers and it clearly states that in the post of Chargeman Grade II NT/OTS, which is the category for which all parties herein are competing, the number of vacancies is 3. It is not in dispute that these three vacancies were filled up by order dated 31.12.2008, the copy of which is enclosed in the typed set of papers. We find that the appointment of Mr.S.Murugesan, R.Ganesh and M.Vasu were made through LDCE 2008 in the N.G. Establishment in Engine Factory, Avadi. On 19.03.2009, the impugned order was passed which merely states that the petitioners herein are appointed through LDCE, 2008. By this appointment order, it is not clear as to how after exhausting the three vacancies, further appointments of two persons were made. However, in the reply statement filed on behalf of respondent, it is stated that a review was made during December 2008 of the vacancy position as per O.M. Dated 03.07.1986 and it was seen that there was backlog vacancies in the LDCE quota. There is nothing to indicate why after the appointments were made there was a review of the vacancy position. It is also stated in the counter that since the fourth respondent has obtained 6th position, he cannot be appointed and the contention that the merit list lapses on the appointment of the first three candidates is not based on any rules or orders.
10. The tribunal held that whatever may be the position of backlog vacancies, the officials had only notified three vacancies and therefore, granting promotion to the petitioners was irregular. The tribunal further held that the respondents had neither maintained a reserved list or waiting list; and for clearing the backlog vacancies that came to light after the filling up of the notified three vacancies, a separate notification was necessary. In this regard, we also take note of the submission made by the learned counsel for the petitioners that if it was an irregular appointment, then it could be regularized. An irregular appointment will not be equal to illegal appointment.
11. In Virender S.Hooda and others vs.State of Haryana and another, [1999 (3) SCC 696], Haryana Public Service Commission advertised 12 posts of Haryana Civil Service (Executive Branch). On completion of selection, final list was published. The appellants before the Supreme Court did not find their names in the merit list. They contended that since some of the selected candidates did not join, they should have been considered, depending upon their ranking. The Supreme Court referred to the policy declared by the State and directed the respondents to consider the appellant’s cases for appointment.
12. In Govt. of A.P. v. K. Brahmanandam, 2008(5) SCC 241, the Supreme Court held the difference between illegal and irregular appointment. Relying on the judgment of the Constitution Bench in Uma Devi’s case [2006(4) SCC 1]. the difference between the two was drawn in paragraph 16 and 17, which reads thus :-
16. Appointments made in violation of the mandatory provisions of a statute would be illegal and, thus, void. Illegality cannot be ratified. Illegality cannot be regularised, only an irregularity can be.
17. The said legal principle has been enunciated by a Constitution Bench of this Court in Umadevi (3), whereof reads as under:
53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa, R.N. Nanjundappa and B.N. Nagarajan and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases abovereferred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services of such irregularly* appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme. (emphasis supplied)
13. In Municipal Corpn., Jabalpur v. Om Prakash Dubey, (2007) 1 SCC 373, Supreme Court again dealt with cases of irregular and illegal appointments.
11.The question which, thus, arises for consideration, would be: Is there any distinction between irregular appointment and illegal appointment? The distinction between the two terms is apparent. In the event the appointment is made in total disregard of the constitutional scheme as also the recruitment rules framed by the employer, which is State within the meaning of Article 12 of the Constitution of India, the recruitment would be an illegal one; whereas there may be cases where, although, substantial compliance with the constitutional scheme as also the rules has been made, the appointment may be irregular in the sense that some provisions of the rules might not have been strictly adhered to.
14. In Prem Singh v. Haryana State Electricity Board, (1996) 4 SCC 319, Haryana State Electricity Board decided to fill up 147 posts and advertisement was published on 02.11.1991. It was contended before the Supreme Court that there cannot be selection of candidates in excess of the number of posts advertised and it would per se offend equality guaranteed under Articles 14 and 16. The Supreme Court held as follows :-
25. From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case. [emphasis supplied.]
15. In State of Punjab vs. Raghbir Chand Sharma and another [2002(1) SCC 113], the Supreme Court held that with the appointment of the first candidate for the only post in respect of which the select panel was prepared, the panel ceased to exist and has outlived its utility and no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently. In this case, the Supreme Court distinguished Hooda’s case [Virender S.Hooda vs. State of Haryana (1999) 3 SCC 696].
16. In Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637, the Supreme Court summarized the law relating to filling up of vacancies in excess of notified/advertised vacancies and held ::
7. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India v. Ishwar Singh Khatri, Gujarat State Dy. Executive Engineers Assn. v. State of Gujarat, State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986, Prem Singh v. Haryana SEB and Ashok Kumar v. Banking Service Recruitment Board.)
8. In Surinder Singh v. State of Punjab7 this Court held as under: (SCC p. 494, paras 14 & 16)
14. 9. A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.*
* * *
16. Exercise of such power has to be tested on the touchstone of reasonableness. It is not as a matter of course that the authority can fill up more posts than advertised. (emphasis added).
13. In the instant case, as 13 vacancies of the general category had been advertised and filled up, the selection process so far as the general category candidates is concerned, stood exhausted and the unexhausted select list is meant only to be consigned to record room.
22. In view of the above, we do not find any force in the submissions that the High Court could have filled vacancies over and above the vacancies advertised on 19-5-2007, as per the directions issued by this Court in Malik Mazhar Sultan (3) case1. More so, no explanation could be furnished by Shri Ranjit Kumar, learned Senior Counsel for the appellants as to why the appellants could not challenge the advertisement itself, if it was not in conformity with the directions issued by this Court in the said case.
23 …
24.A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope of any further appointment.”
17. In Rakki Rai’s case the Supreme Court has referred to Surinder Singh’s case and explained the danger in keeping waiting list and held that the constitutional discipline requires that such improper exercise of power must not be permitted since it could create vested interest and perpetuate the waiting list at the cost of fresh candidates.
18. It is true that the tribunal has used the word “irregular”. But we do not think the petitioners can draw any strength from that when the Supreme Court has held that filling up vacancies over the notified vacancy is not permissible and such exercise would be arbitrary and that it is not permissible in law, which means it is illegal.
19. In Mukul Saikia v. State of Assam,(2009) 1 SCC 386, the Supreme Court relied on both Prem Singh and Hooda’s case and the Supreme Court after considering all the judgments held as under :-
“44. It is well-settled law that filling up of the vacancies over and above the number of vacancies advertised would be violative of Articles 14 and 16 of the Constitution of India. Mere inclusion of the appellants in the select list of the direct appointees does not confer any right on them to be appointed against the vacancies reserved for promotees.”
20. It is true that the petitioners were placed at 4th and 5th rank in the merit list. But that cannot given them any advantage over the 4th respondent who was placed in the 6th rank, since the notification, pursuant to which the examination was held, ceased to exist after the appointments were made for the vacancies for which it was issued. Though the respondents referred to backlog vacancies, it came to light only after the review conducted during December 2008, for which details are not given and there is nothing to indicate by which proceedings such a review was undertaken. However, admittedly the vacancies came to light only after December 2008 i.e. subsequent to the notification. The Tribunal has rightly applied the position in the Rakki Rai case and directed the respondents to issue a separate notification for the number of vacancies which came to light subsequent to the 2008 notification.
21. We are of the view that the matter has been decided according to law and the principles laid down by the Supreme Court. We do not see any reason to interfere with the dismissed. No costs. M.P.Nos.1 to 3 of 2010 are closed.
tar
To
1. The General Manager,
Engine Factory,
Avadi Chennai 54.
2.The Junior Works Manager (Admn.)
Engine Factory, Avadi, Chennai-54.
3. Chairman & Director General,
Ordnance Factory Board,
10-A, S.K.Bose Road, Kolkatta, 700 001.
4. The Registrar,
Central Administrative Tribunal,
Madras Bench,
Madras