DILIP KUMAR TRIPATHY AND ORS. ETC.versusSTATE OF ORISSA AND ORS.

             DILIP KUMAR TRIPATHY AND ORS. ETC.                                   A
                                      v.
                     STATE OF ORISSA AND ORS.

                          SEPTEMBER 10, 1996
                                                                                  B
           (K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

      SERVICE LAW: Orissa State Police-Recrnitmellt for the post of
Sepoy~rescribed nonns and procedure-Advertisement issued-Selection
Committee prepared a list of 225 candidates-Except the six appellants all
other candidates appointed and list exhausted-Vacancies still ex-
                                                                                  c
isted-Second list of 200 candidates prepared amongst the persons appeared
in the earlier recrnitment test-Only 16 persons appointed excluding appel-
lallts-Held, appointments to any public post must be absolutely transparellt
and fair and must be in accordance with the prescribed procedure-Competent
authority may relax the age limit, if ba1red by lapse of time, and consider the   D
applications of the candidates in the Second list-Directions issued.

      The respondent State issued an advertisement inviting applications
for recruitment to the post of Sepoy. A list of 225 candidates was prepared
by the Selection Committee and everyone was appointed except six can-
didates belonging to the reserved category.                                       E

      Thereafter, to fill up the existing vacancies in the cadre of sepoy, the
respondents prepared a fresh list of 200 candidates from amongst the
persons who had earlier appeared in the recruitment test. But only 16
persons were given provisional appointment and no action was taken to             F
recruit others including appellants, even though vacancies existed.

      Appellants whose names were in the fresh list but were not recruited
despite the availability of the vacancies approached the Tribunal with a
contention that decision of the authority was arbitrary. The Tribunal G
directed the respondents to appoints the rest of the candidates from the
fresh list subject to availability of vacancies. The Tribunal also held that
the first list was not prepared by a selection committee duly constituted
as prescribed. Also, that fresh list should not have been prepared without
transfers of sepoy. But, the Tribunal refused to quash the appointments
made pursuant to both the lists. Hence, these appeals.                       H
                                      711
    712                   SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

A         . Allowing the appeals, this court

           HELD : 1.1. Appointments to any public. post must be absolutely
    transparent and fair and must be in accordance with the prescribed
    procedure. Even ad-hoc appointments should not be encouraged as far as
    possible and should be adhered to only when public exigencies require and
B   appointment in accordance \fith the prescribed procedure would take a
    fairly long time and non-filling of the posts would be against public
    interest.· (717-C-D]

          1.2. In the facts and circumstances of the present case, there was
C   absolutely no necessity to prepare a Second List from amongst the can-
    didates Who had appeared at the tests earlier conducted, particularly when
    at that point of time there was no vacancy available. The arbitrary decision
    of the errant officers has brought the entire Police administration in the
    State to disrepute. (717-E]
                                                                              '(

D         1.3. A list of Candidates prepared contrary to the prescribed proce-
    dure has to be scrapped altogether. The Second List of candidates
    prepared for appointment to the post of Sepoys is hereby quashed and any
    appointments made thereunder also stand quashed. The respondents are
    directed to issue advertisement indicating the number of vacancies avail-
E   able 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 pursuant to fresh advertisement to be
    issued, then the competent authority may relax the age limit and consider
F   their cas·e in accordance with Law. (717-F-H]                             ,.

          2.1; High ranking Police Officers who claim to be members 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 vacancies. Such
G   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. [716-B-C]
                                                                                   .-
H           2.2. The appellants had not challenged the legality of the preparation
                     D.K. TRIPATHY v. STATE (PATTANAIK, J.]                    713

"~
 '     of the First List as well as the appointments made pursuant thereto. Even      A
       in this court the legality of the First List had not been challenged. There-
       fore quashing of both lists does not arise. [716-E-F]

             2.3. Tribunal was not correct in its conclusion that the Selection
       Committee was required to consist of three members whereas the commit-
       tee which really made the selection consisted of four members as the           B
       Tribunal did not notice the addendum issued by the Police Head quarter
::oo   in this regard. [716-G]

             CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 11763-67
       ~~                                                                             c
             From the Judgment and Order dated 21.9.95 of the Orissa Ad-
       ministrative Tribunal, in O.A. Nos. 2252/93, 1556/93 etc.

             K. Madhava Reddy, J.K. Das and P.N. Misra for the Appellants.
                                                                                      D
             Jayant Das, R.K. Mehta for the Respondents.

             The Judgment of the Court was delivered by

             PATTANAIK, J. Leave granted.

             These appeals by special leave are directed against the order of the-
                                                                                      E
       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 empanelled in the list prepared for appointment to F
       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 prpvisionally 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 G
       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 some-
       times in March, 1992 inviting applications for recruitment to the post of H
    714                   SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.
                                                                                    ,...
A 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 ex-
  hausted, the Commandants of the Battalion informed the Deputy Inspector
B
  General of Police, Special Armed Police, Orissa, Cuttack by letter dated
  7th January, 1993 that action should he 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 Commandi}nt to prepare a
  further list of approximately 200 candidates from amongst the persons who
C 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 Comma.ndant
  by letter dated 12th February, 1993 to fill up the vacancies from the Second
  List but notwithstanding the said direction the Commandant only issued
D provisional appointment letters to 16 persons from the SecondList 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
E 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 not validity and nobody should.be appointed therefrom.
F 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 im-
   pugn~d in these appeals.
G
           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
H    to the post of Sepoy and then giving appointments to some no further
               D.K. TRIPATHYv. STATE (PATTANAIK,J.]                     715

 appointment letter was issued and such a racket should be discouraged by A
 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 B
 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    c
 Court. So far as the preparation of the Second List and appointment made
 thereunder, 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 appoint-
 ments already made need not be interfered with since people have already D
 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 E
  wocedure 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. F
  1 and 2 being sworn to by Sanjeev Marik, 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 Ge'neral of
  Police not to make any appointment from the Second List in question. It G
  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.l.G. Special Armed Force for their irregular
  directions issued to the Commandants 6th Battalion and the State Govern- H
          .'



    716                   SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.

A   ment (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
B   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 pres'cribed 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
c   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 ir-
    regula~ities in future, so that, hundreds of poor persons in the hope and
    expect.ation of getting a job will not ultimately suffer.
D
         Though Mr. K. Madhava Reddy, the learned Senior counsel appear-
  ing 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
E 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
F 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 bbth the lists be quashed notwithstanding the observations of the
  Tribunai with regard to the irregularity in the constitution of the commit-
G tee. That apart the Tribunal also was not correct in its conclusion that the
   committee was required to consist of three members whereas the commit-
   tee 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
H since the legality of the preparation of the First List and appointment




           ;   '
              D.K. TRIPATHYv. STATE (PATTANAIK,J.]                    717

pursuant thereto had not been assailed before the Tribunal itself.          A
       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 011 the basis of the vacancies
as it existed on the date of the judgment of the Tribunal but in view of the B
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 ap-      c
pointments 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 D
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 circumstan-
ces 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 E
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-af-
fidavit the Director General of Police has already issued such direction. In
the aforesaid premises, the Second List of candidates for appointment to F
the post of Sepoys prepared by the Commandant 0.S.A.P., 6th Battalion,
Cuttack of 9th February, 1993 is hereby quash 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 proce- G
dure 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
                                                                            H
    718                 SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.

A authority may relax their age and consider their case in accordance with
    law. These appeals are allowed with the aforesaid directions and observa-
    tion. 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 and to the Director
    General of Police, Orissa, CUttack for necessary action and to report the
B   result of the action taken to the Registry of this Court.

    M.K..                                                   Appeals allowed.
                                                                                -
          '?