Dilip
Kumar Tripathy & Ors Vs. State of Orissa & Ors [1996] INSC 1109 (10 September 1996)
G.B.
Pattanaik (J) G.B. Pattanaik (J) Ramaswamy, K.Pattanaik, J.
ACT:
HEAD NOTE:
Leave
granted.
These
appeals by special leave are directed against the order of the Orissa
Administrative Tribunal dated 21st September, 1995 in Original Application No. 2252/93 and batch.
The
appellants filed applications before the Tribunal alleging therein that though
they were impanelled in the list prepared for appointment to the post of Sepoy
in the 6th Battalion on 9th February, 1993 (hereinafter referred to as `the
Second List') and even though vacancies existed but only 16 candidates out of
the said List were provisionally appointed on 30th March, 1993 and no further
appointment was made. It was the case of the appellants that the List in question
having been duly made and vacancies in rank of Sepoys being there the decision
of the authority to provisionally appoint only 16 persons and not to others is
arbitrary and there has been a hostile discrimination between those who have favoured
with provisional appointment and the appellants. Be it be stated that even
prior to the preparation of the Second List an advertisement had been issued
sometimes in March, 1992 inviting applications for recruitment to the post of Sepoy
in the 6th Battalion and in accordance with Police Order No. 286 of 1989 the
Selection Committee prepared a list of 225 candidates on 31st October, 1992
(hereinafter referred to as `the First List'). The said List was exhausted and
excepting six candidates belonging to the reserved category the rest were duly
appointed.
Immediately
after the First List got exhausted, the Commandant of the Battalion informed
the Deputy Inspector General of Police, Special Armed Police, Orissa, Cuttack
by letter dated 7th January, 1993 that action should be taken to prepare a
fresh list and fill up the existing vacancies in the cadre of Sepoy. The D.I.G.
of Police by his letter dated 15th January, 1993 directed the Commandant to
prepare a further list of approximately 200 candidates from amongst the persons
who had earlier appeared in the recruitment test, so that, vacancies could be
filled up. Pursuant to this direction a fresh list was prepared on 9th February, 1993. The Inspector General of Police
directed the Commandant by letter dated 12th February, 1993 to fill up the vacancies from the
Second List but notwithstanding the said direction the Commandant only issued
provisional appointment letters to 16 persons from the Second List and no action
was taken to recruit others including the appellants. The appellants,
therefore, approached the Tribunal by different applications as already stated.
The Tribunal discussed the procedure relating to the appointment of Sepoys and
came to hold that even the First List which was prepared was vitiated since the
selection committee in question had not been duly constituted. The Tribunal
also came to the conclusion that there was no necessity to prepare a Second
List unless the Sepoys from the 6th Battalion were transferred out and it
further held that the Inspector General of Armed Police had intimated that the
Second List has been irregularly prepared and has no validity and nobody should
be appointed there from.
Ultimately,
Tribunal did not quash the appointments made pursuant to the First List as well
as the appointments already made pursuant to the Second List and further
directed that taking into account the vacancies which were available on 30th
March, 1993 the rest of the candidates from the Second List be appointed. The
aforesaid direction of the Tribunal is being impugned in these appeals.
At the
outset, Mr. K. Madhava Reddy, the learned Senior counsel appearing for the
appellants urged that the present case is a glaring example of an employment
racket where the concerned authorities without following the prescribed
procedure prepare lists after lists for appointment to the post of Sepoy and
then giving appointments to some no further appointment letter was issued and
such a racket should be discouraged by issuance of appropriate direction by
this Court. Mr. Madhava Reddy also urged that both the lists should be scrapped
and the appropriate authorities should be directed for filling up the vacancies
in accordance with the prescribed procedure under law and appointments be made
strictly according to the merit. Mr. Jayant Das, the learned senior counsel
appearing for the respondent - State, on the other hand submitted that there
was no infirmity with the preparation of the First List and the Tribunal erroneously
came to the conclusion about the illegality in the constitution of the
committee not having taken note of the addendum issued by the Director General
of Police, and therefore, the appointments made pursuant to the First List does
not require any interference by this Court.
So far
as the preparation of the Second List and appointment made there under, Mr. Das,
however, submitted that there has been certain irregularity in the preparation
of the Second List and this Court could issue appropriate direction in this
regard. He, however, submitted that appointments already made need not be
interfered with since people have already served the State for quite some time.
When
the case was listed for admission on February 26, 1996, this Court being
satisfied with the contention of Mr. Madhava Reddy, the learned Senior counsel
for the appellants and being of the view that the concerned authorities have
deliberately prepared long list contrary to the procedure prescribed under law
obviously by way of allurement to the hundreds of aspirants, issued notice to
the respondents to indicate as to why stricture should not be passed against
all those higher police officials who are misusing their posts for making
appointment contrary to their own regulations. A counter-affidavit has been
filed on behalf of respondent nos. 1 and 2 being sworn to by Sanjeev Malik, AIG
of Police, Orissa State Police Headquarters, Cuttack, Orissa admitting therein
that there has been gross irregularity in preparing the Second List and instructions
had been issued from the State Police Headquarters and the Director General of
Police not to make any appointment from the Second List in question. It has
been further stated that the Director General of Police has already moved the
State Government by his letter dated 14th February, 1996 to initiate
appropriate action against the then Inspector General of Police, Special Armed
Force and D.I.G. Special Armed Force for their irregular directions issued to
the Commandant 6th Battalion and the State Government (Home Department) is in
the process of taking departmental action against the defaulting officers.
Notwithstanding the aforesaid affidavit filed by respondent nos. 1 and 2 and
notwithstanding the proposal for initiation of appropriate disciplinary proceeding
against the errant officers, we are in pain to find that such high ranking
police officers who claim to be a member of the disciplined force, have taken
recourse to gross irregularities in getting list prepared for appointments to
the post of Sepoys contrary to the prescribed norms and procedure and even
though there did not exist the vacancies.
Such
course has been taken obviously not in the public interest but for some
extraneous consideration and as an allurement to hundreds of poor aspirants with
some positive motive. Such conduct of the errant officers must be deprecated
and we hope and trust that the State of Orissa should take appropriate disciplinary measures against the defaulting
officers. The Director General of Police would also curb all such
irregularities in future, so that, hundreds of poor persons in the hope and
expectation of getting a job will not ultimately suffer.
Though
Mr. K. Madhava Reddy, the learned Senior counsel appearing for the appellants
contended that both the lists should be scrapped in view of the irregularities
committed by the committee as observed by the Tribunal, but we find that the
appellants had not challenged the legality of the preparation of the First List
as well as the appointments made pursuant to the same list. Even in this Court
the legality of the First List had not been challenged and the only ground of
attack was that why the direction of the Tribunal to appoint people taking into
account the vacancies existed as on 30th March, 1993 should not be interfered
with as the said date is an arbitrary date having no nexus with the ultimate
direction. Since the First List was not under challenge before the Tribunal and
has not been challenged in this Court also, we are unable to persuade ourselves
to agree with the submissions of Mr. K. Madhava Reddy, the learned Senior
counsel that both the lists be quashed notwithstanding the observations of the
Tribunal with regard to the irregularity in the constitution of the committee.
That
apart the Tribunal also was not correct in its conclusion that the committee
was required to consist of three members whereas the committee which really
made the selection consisted of four members as the Tribunal did not notice the
addendum issued by the Police Headquarter in this regard. It is, however, not
necessary to further deal with the matter since the legality of the preparation
of the First List and appointment pursuant thereto had not been assailed before
the Tribunal itself.
But so
far as the Second List is concerned though the controversy between the parties
is whether the respondents be directed to fill up the vacancies as it existed
on 30th March, 1993 from out of the persons included in the Second List or it
should be on the basis on the vacancies as it existed on the date of the
judgment of the Tribunal but in view of the gross illegality in the preparation
of the Second list itself as has been indicated in the counter- affidavit. it
would be in the interest of justice to scrap the Second list altogether and to
direct the authorities to make a fresh selection in accordance with the
prescribed procedure and then appoint persons in accordance with the merit. It
may be noted that appointments to any public post must be absolutely
transparent and fair and must be in accordance with the prescribed procedure.
this is the reason why this Court has been indicating that even ad-hoc
appointments should not be encouraged as far as possible and should be adhered
to only when public exigencies require and appointment in accordance with the
prescribed procedure would take a fairly long time and non-filling up of the
posts would be against the public interest. In the facts and circumstances of
the present case there was absolutely no necessity to prepare a Second List
from amongst the candidates who had appeared at the tests earlier conducted. particularly
when at that point of time there was no vacancies available. The arbitrary
decision of the errant officers has brought the entire police administration in
the State to disrepute. A list of candidates prepared contrary to the
prescribed procedure has to be scrapped altogether and in fact as has been
indicated in the counter-affidavit the Director General of Police has already
issued such direction. In the aforesaid premises, The Second List of candidates
for appointment to the post of Sepoys prepared by the Commandant O.S.A.P., 6th
Battalion, Cuttack of 9th February, 1993 is hereby quashed and any appointments made thereunder also
stand quashed. The respondents are directed to issue advertisement indicating
the number of vacancies available. and to adjudge the suitability of the
applicants in accordance with the prescribed procedure and then take steps for
filling up of the posts in question. By passage of time if any of the persons
who were included in the Second List have been age barred in the meantime and
if they make application for the posts of Sepoy pursuance to fresh
advertisement to be issued, then the competent authority may relax their age
and consider their case in accordance with law. These appeals are allowed with
the aforesaid directions and observations. There will be no order as to costs.
A Copy of the order may be sent to the Chief Secretary to the Government of Orissa,
Cuttack for necessary action and to report
the result of the action taken to the Registry of this Court.
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