B.S. Chauhan, C.J.
1. This Writ Petition has been fled challenging the Orders Dated 29.9.2004 and 30.9.2004 under Annexures 5 and 6 respectively by which the services of the Petitioner had been terminated on the ground that he had been illegally appointed as a Class IV employee in the judgeship of Kandhamal-Boudh, Phulbani.
2. The facts and circumstances giving rise to this case are that the Petitioner claims to have been appointed vide Order Dated 26.8.2002 (Annex. 1) as a Class IV employee by the District Judge, Kandhamal-Boudh, Phulbani. Subsequently this Court on administrative side received certain complaints and an inquiry was held. This Court came to the conclusion that appointments had been without following the procedure prescribed by law. Disciplinary proceedings were also initiated against the then District Judge. However, subsequently it could not be completed and the same were dropped. However, a show cause dated 21.8.2004 was served upon the Petitioner why his services could not be terminated as he had been appointed without any advertisement and without being enrolled as a candidate under Rule 71 of the General Rules and Circular Orders (Civil) vide Annexure 3. The Petitioner submitted his reply to the said show cause on 21.8.2004 (Annex. - 4) and after considering the same services of the Petitioner had been terminated by the impugned orders.
3. Mr. J.K. Rath, Learned Senior Counsel appearing for the Petitioner has submitted that as the vacancy stood notified on the notice board of the District Court and in pursuance thereof the Petitioner applied and after passing the interview and other formalities the selection was held in accordance with law, it cannot be held that the Petitioner had been appointed illegally. Thus his services could not be terminated. The order impugned is liable to be quashed.
4. On the other hand, Mr. P.K. Khuntia, Learned Additional Government Advocate has vehemently opposed the petition contending that even if it is accepted that the vacancy stood notified on the notice board of the District Court, it did not meet the requirement of Articles 14 and 16 of the Constitution and any appointment made without advertising the vacancy is null and void being hit by Articles 14 and 16 of the Constitution and therefore, the petition is liable to be dismissed.
5. We, have considered the rival submissions made by the Learned Counsel for the parties and perused the record.
6. The facts are not in dispute. The only question to be considered is whether notifying the vacancy on the notice board of the office is enough to make the appointment in public office or vacancy therein can be filled up without advertisement.
7. Whenever there is a vacancy in public office, constitutional provisions mandate to advertise the post inviting applications through newspapers having wide circulation, so that all eligible persons may apply. The process of selection is to be completed assessing the inter se merit of the candidates. It is also not permissible to fill up the vacancy exceeding the number of vacancies advertised and any appointment made in contravention of such constitutional requirements vitiate the selection process itself and render it to nullity. Vide B.S. Minhas v. Indian Statistical Institute and Ors. : (1984)ILLJ67SC ; Surinder Singh v. State of Punjab and Anr. AIR 1998 SC 18; Government of Orissa v. Har Prasad Das AIR 1998 SC 375; Subash Chand Dhrupta and Anr. v. State of H.P. and Ors. : (2000)10SCC82 ; Binod Kumar Gupta and Ors. v. Ram Ashray Mahoto and Ors. : AIR2005SC2103 ; National Fertilizers Ltd. v. Somvir Singh : (2006)IILLJ1113SC ; Ashok Kumar Sonkar v. Union of India and Ors. : (2007)4SCC54 ; Commissioner Municipal Corporation Hyderabad and Ors. v. P. Mary Manoranjani AIR 2008 SCW 704; and Mukul Saikia and Ors. v. State of Assam and Ors. 2008 AIR SCW 7971.
8. Articles 14 and 16 of the Constitution of India have to be construed in a broad and general, not in a technical way for the reason that these Articles apply with rigors not merely at the time of appointment but subsequent to the employment also for the purpose of promotion etc. Vide General Manager, Southern Railways v. Rangachari : (1970)IILLJ289SC ; Government of A.P. and Anr. v. A. Suryanarayana Rao and Ors. : AIR1991SC2113 ; and Union Public Service Commission v. Girish Jayantilal Vaghela and Ors. (supra).
9. In Union Public Service Commission v. Girish Jayantilal Vaghela and Ors. : AIR2006SC1165 , the Hon'ble Supreme Court held that the appointment to any post under the State can only be made after a proper advertisement has been issued inviting applications from eligible candidates and holding of selection by a Body of Experts, and any appointment made without following the procedure, would be in violation of the mandate of Article 16 of the Constitution of India.
10. It is a settled legal proposition that appointment to any public post is to be made by advertising the vacancy and any appointment made without doing so violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered.
11. In Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi and Ors. : (1992)IILLJ452SC , the Apex Court held that calling for names from Employment Exchange may curb to certain extent the menace of nepotism and corruption in public employment.
12. In State of Haryana v. Piara Singh : (1993)IILLJ937SC , the Supreme Court held as under:
Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
13. Any appointment made on temporary or ad hoc basis in violation of the mandate of Articles 14 and 16 of the Constitution of India is not permissible, and thus void as the appointment is to be given after considering the suitability and merit of all the eligible persons who apply ill pursuance of the advertisement. In Excise Superintendent Malkapatnam, Krishna District A.P. v. K.B.N. Visweshwara Rao and Ors. : (1997)ILLJ56SC , the larger Bench of the Supreme Court reconsidered its earlier Judgment in Union of India and Ors. v. N. Hargopal and Ors. : (1987)ILLJ545SC , wherein it had been held that insistence of requirement through employment exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution, and held that any appointment even on temporary or ad hoc basis without inviting application is in violation of the provisions of Articles 14 and 16 of the Constitution and even if the names of candidates are requisitioned from Employment Exchange, in addition thereto it is mandatory on the part of the employer to invite applications from all eligible candidates from open market as merely calling the names from the Employment Exchange does not meet the requirement of the said Articles of the Constitution. Same view has been reiterated in Arun Tewari and Ors. v. Zila Mansavi Shikshak Sangh and Ors. AIR 1998 SC 331; Kishore K. Pati v. District Inspector of Schools, Midnapore and Ors. (2000) 9 SCC 405 and Sub hash Chand Dhrupta and Anr. v. State of H.P. and Ors. : (2000)10SCC82 . Therefore, it is settled legal proposition that no person can be appointed even on temporary or ad hoc basis without inviting applications from all eligible candidates and if any such appointment has been made or appointment has been offered merely inviting names from the Employment Exchange that will not meet the requirement of Articles 14 and 16 of the Constitution.
14. In Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors. : (2006)IILLJ722SC , a Constitution Bench of the Supreme Court examined the provisions of Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, and observed that the said Act was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure.
15. In view of the fact that the Apex Court has consistently been reiterating that even ad hoc appointments are to be made in accordance with the mandate of Articles 14 and 16 of the Constitution of India and even where the names are being requisitioned from the Employment Exchange, the advertisement in the newspapers having wide circulation is mandatory.
16. In M.D., H.S.I.D.C. and Ors. v. Hari Om Enterprises and Anr. : AIR2009SC218 , the Apex Court held that every action of State instrumentality, which is the 'State' within the meaning of Article 12 of the Constitution of India, must be fair and reasonable so as to sub-serve the requirements of Article 14 of the Constitution.
17. In Common parlance 'advertisement' means to make publicly known an information by some device and to draw and attract attention of the public/individual concerned to such information. There may be some overlapping in the connotation of advertisement and publicity, vide Eskayef [now known as Smithkline Beecham Pharmaceauticals (India) Ltd.] v. Commissioner of Income Tax, Karnataka-II, Bangalore : [2000]245ITR116(SC) ; and Municipal Corporation of Greater Bombay v. Bharat Petroleum Corporation Ltd. : [2002]2SCR860 .
18. Placing reliance upon its earlier Judgment in Bharat Petroleum Corporation Ltd. (supra), similar view has been reiterated by the Apex Court in ICICI Bank and Anr. v. Municipal Corporation of Greater Bombay and Ors. : AIR2005SC3315 .
19. Admittedly, the vacancy has not been advertised in proper sense. Even if it is assumed that vacancy was notified on the notice board of the Court concerned, it does not amount to advertisement as it cannot be termed a notice to the public at large and the vacancy had not been brought to the notice of other eligible candidates, who had a right to be considered against the said vacancy. Therefore, the selection stood vitiated for want of proper advertisement of the vacancy.
20. A Full Bench of the Allahabad High Court in Kumari Radha Rai Zaida v. Committee of Management, Vidyabati Darbari Girls' Inter College 1994 (3) UPLBC 1551 considered the Issue of advertisement of a temporary vacancy on the post of Principal of a school by notifying the same on the notice board of the school. The Court held that it was not advertisement at all as it did not meet the statutory and constitutional requirements. The vacancy was required to be notified at least in two newspapers having wide circulation therein.
21. It is settled legal proposition that if initial action is not in consonance with law, the subsequent proceedings would not sanctify the same. In such a fact situation, the legal maxim 'sublato fundamento cedit opus' is applicable, meaning thereby in case a foundation is removed, the superstructure falls.
22. In Badrinath v. State of Tamil Nadu and Ors. : AIR2000SC3243 ; and State of Kerala v. Puthenkavu N.S.S. Karayogam and Anr. : (2001)10SCC191 , the Apex Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders.
23. We find no force in the submission made by Mr. Rath, Learned Senior Counsel appearing for the Petitioner that as this Court did not take any action against the District Judge, the appointing authority, no action was called for against the Petitioner, who stood selected, through a defective selection process. In fact the disciplinary proceedings had been initiated against the said District Judge, but subsequently same were dropped. The proceedings could not reach the logical end. However, we fail to understand how such a factor would help the Petitioner. In fact the selection was-hela without advertisement of the vacancy, thus it cannot be approved. Nor it is desirable to protect such illegal appointment.
24. In view of the above, the Writ Petition lacks merit and is accordingly dismissed.
B.N. Mahapatra, J.
I agree.