Shiwangi Mahato vs State Of Odisha And Others

Dixit Krishna Shripad, J

This Intra-Court Appeal is directed against a learned Single Judge’s order dated 11.11.2024, whereby Appellant’s WP(C) No. 12764 of 2024 has been dismissed. In the said Writ Petition, the Appellant had sought for the quashment of Order No.12925 dated 05.11.2024 issued by Respondent No.3 coupled with a direction to appoint him as the Assistant Professor (Anaesthesiology) in MKCG Medical College, Berhampur.

Learned counsel for the Appellant vehemently argues that pursuant to the Advertisement dated 08.05.2024, his client & others faced a walk-in interview and came to be selected. Accordingly, the selection list dated 14. 05.2024 came to be published wherein the Appellant figured at serial No.4; however, two of the selected candidates who were issued with appointment orders, did not turn up for joining and eventually the vacancies remained intact; a fresh advertisement was issued on 05.11.2024 instead of appointing the Appellant to one of the vacancies; therefore, there is error apparent on the face of the record in negativing the Writ Petition despite quashment of the fresh advertisement.

Learned AGA appearing for the official Respondents resists the Appeal making submission in justification of the impugned order of learned Single Judge and the reasons on which it has been constructed. He contends that the reasoning of learned Single Judge is unassailable, more particularly because the employment in the public sector has to be accomplished on normative basis, i.e., by way of regular recruitment, and not by contractual engagement.

Having heard learned counsel for the parties and having perused the Appeal papers, we decline indulgence in the matter on the following grounds:

4.1. The process of rule-making is a protracted and complicated one involving consultation with various authorities and compliance with manifold formalities. It cannot also be disputed that exigencies of administration at times require immediate creation of service of posts and any procrastination in that behalf cannot but prove detrimental to the proper and efficient functioning of public departments, observed the Apex Court in Bhakta Ramegowda v. State of Karnataka, (1997) 2 SCC 661. It is now beyond any controversy that appointments may be regulated either by Executive Instructions or Statutory Rules. Existence of statutory rules is not a condition precedent for appointing an eligible and fit person to a post. The Executive Power is co-extensive with the Legislative Power of the State and under Article 162 the State could create civil posts and fill them up according to the Executive Instructions consistent with Articles 14 & 16 of the Constitution. It is also settled law that once statutory rules have been promulgated, the appointment has to be in accordance with such rules.

4.2. The reason why there are safeguards in regular appointment is that there should not be any scope for favouritism or other extraneous consideration where persons, only on merit, are recruited through a fully transparent procedure established by law, i.e., the rules of recruitment. If the persons who are employed on contract basis, are given equal benefit and status as regular employees, it would amount to giving premium and sanction to a process which is totally arbitrary, inasmuch as there have already been statutory rules of recruitment in the departments that have been promulgated under Proviso to Article 309 of the Constitution of India. It is not disputed before us that the extant rules of recruitment do not provide for contractual engagement. We fail to understand how the State agency could go for contractual appointment without exploring the regular recruitment process ordained by law, as has happened in this case. It needs no reiteration that all appointments in the Government and public sector have to be done only by a duly constituted recruitment process, subject to all just exceptions recognized by the recruitment rules.

4.3. A cryptic advertisement for contractual appointment followed by a half-hearted walk-in interview conducted by persons not answering the description of selection committee under the extant rules, would not give a legally enforceable right to appointment to anyone, be it contractual or otherwise. We are coming across a plethora of such cases wherein the dispute relates to contractual recruitment, in the face of regular recruitment rules. We harshly deprecate the practice of contractual appointments in public employment, that are undertaken by the ‘authorities that be’ flouting the normative recruitment process. Posts are created in several departments/establishments as a matter of State policy; the appointment to these posts cannot be made except by the known modes. Public advertisement is the first step; then comes the written examination; thereafter, the interview. Doing away any of these fundamentals, would mar the end product, namely, the appointment itself. A walk-in interview in any circumstance cannot be the sole criteria for adjudging eligibility, qualification, competition and suitability of the candidates. In Lila Dhar v. State of Rajasthan, AIR 1981 SC 1777 it is observed as under:

“What is the ideal mode of selection to a public service, by written examination, by oral test (viva voce), or by a combination of both ?...

the written examination assesses the man’s intellect and the interview tests the man himself and ‘the twain shall meet’ for a proper selection…”

4.4. State and its instrumentalities under Article 12 of the Constitution, being Model Employers, vide Bhupendra Nath Hazarika v. State of Assam, AIR 2013 SC 234, have to undertake recruitment process only in accordance with the extant Rules of Recruitment, that intend to achieve transparency, fairness & objectivity. That is defeated if walk-in interview is adopted as the mode of selection. Walk-in interview gives scope for the allegation that things have been accomplished in shrouded mystery and that shakes confidence of the public in the recruitment process. It is said, sunlight is a true detergent. When the world is moving towards transparency, things that are done in a non-transparent way, become vulnerable for challenge. In the case of walk-in interview, who interviewed whom and how would remain enigmatic. However, such a mode may be adopted if the rules permit, is also true. In the case at hand, no such rule is cited before us. It is relevant to reproduce what the Apex Court observed in Praveen Singh v. State of Punjab, (2000) 8 SCC 633:

“…..Does it say that an interview should be the only method of assessment of the merits of the candidates? The answer obviously cannot be in the affirmative. The vice of manipulation, we are afraid cannot be ruled out. Though interview undoubtedly is a significant factor in the matter of appointments, it plays a strategic role but it also allows creeping in of a lacuna rendering the appointments illegitimate. Obviously it is an important factor but ought not to be the sole guiding factor since reliance thereon only may lead to a ‘sabotage of the purity of the proceedings’….”

4.5 The impugned order of the learned Single Judge inarticulately reflects what has been discussed hereinabove and therefore, the same cannot be faltered. It gives the scope for the State to undertake the regular recruitment process on a war footing. Merely because the advertisement for contractual employment has been quashed, that would not give an indefeasible right of appointment to a candidate who has been selected in a mode unknown to regular recruitment rules. We hasten to add that there is scope for improvement even in heaven, said Oscar Wilde (1854-1900). That applies to the realm of judgments too.

4.6. There is one more significant aspect that cannot go uncommented upon: Vacancies in the sanctioned posts in the Government & in public sector do periodically arise & accumulate because of death, decease, retirement, removal, resignation or otherwise. It is a continuous process. However, we often come across poignant situation wherein no regular and periodic recruitment process is undertaken. That would obviously result into a chunk of eligible & qualified candidates who belong to reserved & unreserved categories, is rendered age barred. Such unfortunate candidates will have a lot of heart burn and that would not augur well to any system. Thousands of vacancies in this State continue for an unreasonably long period. PILs are also pending in this regard. Huge vacancy positions create difficulties to the governance, needs no research for vouching. This can be avoided if recruitment is undertaken in the public employment, with fair degree of regularity. Otherwise, the eligible & aspiring candidates would become age barred. The employment under a State entity is a public asset and every citizen has a right to apply for it, vide The Municipal Council v. K. Jayaram, 2026 LiveLaw (SC) 38. It is high time that the Government and other concerned agencies to look into the matter and swing into swift action.

In the above circumstances, this Appeal fails, of course, with the observations hereinabove made.

Registry to send a copy of this judgment by speed post to:

(i) The Chief Secretary, Government of Odisha, Bhubaneswar.

(ii) The Secretary,

Odisha Public Service Commission, Cuttack

Web copy of the judgment to be acted upon by all concerned.