V.K. Bali, J.
1. Challenge in the present petition filed under Article 226 of the Constitution of India is to order dated 6.2.2004 passed by the learned Central Administration Tribunal, Jaipur vide which Original Application No. 495/2003 filed by the petitioner seeking declaration of result of written test held on 12.6.2003 and declaring notification dated 14.8.2003 to be null and void was dismissed.
2. Brief facts of the case as projected in the petition reveal that the petitioner being eligible to appear in the examination for selection on the post of Diesel Chargeman (Electrical) submitted his application which was entertained. However, the written test for selection was not conducted and the respondent department readvertised the posts vide notification dated 4.3.2003. It is the case of the petitioner that vide notification mentioned above, reference of earlier notifications dated 21.1.2002 was also given. The copy of the notification has been annexed to the petition as Annex.3. The petitioner again submitted an application for consideration of his name on the post under contention, which was entertained and the second respondent issued a list of eligible candidates on 14.5.2003 which included the name of the petitioner as well at S.No. 1. A copy of the list of eligible candidates issued on 14.5.2003 has been annexed to the petition as Annex.4. The name of one Mr. Jagdish Prasad S/o Chajju Ram was mentioned at S.No. 12. The petitioner is stated to have been born on 14.4.1957 and when he submitted application in response to the first notification dated 21.1.2002 he was below 45 years of age. When, however, he submitted application pursuant to the second notification dated 4.3.2003 he was above the maximum age of 45 years that had been prescribed but his name was still included in the list of eligible candidates as per the case of the petitioner on the ground that the vacancy, which was advertised vide notification dated 21.1.2002 was the vacancy of the year 2001-2002 and the petitioner was eligible as on the date when the vacancy had accrued or fallen vacant. The petitioner appeared in the selection test conducted pursuant to the notification dated 4.3.2003. To his knowledge he secured marks enough to be declared selected in the written test. However, the respondents cancelled the entire examination vide order dated 14.8.2003 and issued yet another notification on 1.9.2003. In this notification reference of earlier notification dated 21.1.2003 and 4.3.2003 was not given. The petitioner yet submitted application for consideration of his name but the second respondent did not include his name in the list of eligible candidates. In the eligibility list names of only 9 candidates were included whereas in the last eligibility list dated 14.5.2003 names of 15 candidates were included. The zone of consideration, in the manner aforesaid, was reduced, the examination was conducted on 22.4.2004. The petitioner being aggrieved of non-inclusion of his name in the list of eligible candidates filed Original Application before the learned Tribunal with the result as already indicated above.
3. In response to the notice issued by this court reply on behalf of respondents No. 1 and 2 has been filed wherein, while opposing the cause of the petitioner it has inter-alia been pleaded that the petitioner is working as Electric Fitter Gr.I, in the pay-scale of Rs. 4500-7000 since 16.5.1994 but he was never promoted/posted as Master Craft Fitter. The respondents have admitted having issued notification for filling up one post of General Caste Category Candidate for the post of Electrical Chargeman and the eligible candidates were required to give their application but because of certain administrative reason the said notification was reissued referring the earlier notification. In the second notification dated 4.3.2003 the petitioner was not eligible as he had crossed the upper age of 45 years as on 13.4.2002, but because of earlier notification the reference of which was made in the second notification, his name found place in the eligibility list dated 14.5.2003. It is further pleaded that in so far as knowledge of the petitioner that he secured marks enough to be declared selected in the written test, no comments would be submitted when the selection itself had been cancelled. No comments with regard to his performance can be made either. Because of some administrative reasons selection conducted vide letter dated 14.8.2003 was cancelled. It is stated to be the prerogative of the respondent to make the selection or not for which no grievance can be raised by the petitioner. The administration has every right to conduct the selection or cancel the same for valid administrative reasons. A fresh notification was thus issued on 1.9.2003 but in the said notification reference of earlier notification was not given as it was a fresh notification after cancellation of all earlier notifications. It is then averred that the petitioner has failed to demonstrate as to how these vacancies were pertaining to the year 1999-2000.
4. From the pleadings of the parties as mentioned above Mr. R.N. Mathur, learned counsel for the petitioner vehemently contends that the first notification for inviting applications was issued by the second respondent on 21.1.2002. The vacancy position shall be determined before the notification was issued. The respondent could not conduct the examination and issue a fresh notification on 4.3.2003. This notification was of the same vacancy which was advertised by the notification dated 21.1.2002. It was no fault of the petitioner that the examination was cancelled. The petitioner could not be put to loss by ousting him from the list of eligible candidates on account of lapse on the part of the respondents. The respondents considering that the petitioner was not at fault, rightly included his name in the list of eligible candidates issued on 14.5.2003. The process of selection initiated for the second time was also cancelled and for the same vacancy process of selection was again initiated vide notification dated 1.9.2003. In the said notification it was stated that the age of 45 years should be as on 15.10.2003. The counsel contends that no such condition could have been imposed for the vacancy which was available on 21.1.2002. The eligibility of the candidates has to be considered with reference to the date of vacancy. The respondents could not block the promotion chances of eligible candidates by not conducting the examination in time or by not initiating the process of selection. The learned Tribunal did not advert to the basic contention that when the petitioner was eligible and there was vacancy, he could not be denied right of selection to a higher post. For no valid reasons the notification earlier issued has been cancelled further contends the learned counsel. The next contention of the learned counsel is that once the name of the petitioner was included in the list of eligible candidates on 14.5.2003 and he was allowed to appear in the examination also, there could not be any valid reason for cancellation of the examination as such. The learned counsel appearing for the respondents has however, sought to defend the case on parity of reasons given by the learned tribunal while dismissing the original application of the petitioner.
5. We have heard the learned counsel appearing for the parties and examined the records of the case.
6. Before we may, however, proceed in the matter we would like to mention that the Motion Bench when the matter came up for hearing before it on 20.2.2004, after recording the basic contention of the learned counsel, while issuing notice to the respondents with regard to the stay application as well also ordered that if any promotion is made on account of this third advertisement of the same post, the selection will be subject to the final decision on this writ petition.
7. The facts culled out from the pleadings of the parties which are not in dispute clearly reveal that first notification for the post under contention was issued on 21.1.2002. It is clearly mentioned in the notification Annex.A/2 that there is a proposal to fill up the vacant posts of Diesel Chargeman (Electrical) in the pay-scale of Rs. 5000-8000. It is also mentioned that one post was vacant. It is thus absolutely clear and so is the case of the petitioner which has not specifically been controverted in the pleadings that the vacancy had arisen in 2001-2002. Concededly the petitioner was within the age limit as prescribed in the notification dated 21.1.2002. He applied for the post but the process could not be carried any further. There was readvertisement of the post vide notification dated 4.3.2003. It is admitted in the written statement filed on behalf of the respondents that while issuing a notification dated 4.3.2003, reference of earlier notification dated 21.1.2002 was also given. Such an admission has been made in para 2 of the written statement, relevant part whereof reads as follows :-
'The petitioner was not entitled because he has crossed the upper age limit of 45 years as on 13.4.2002, but because of earlier notification the reference of which was made in the second notification his name found place in the eligible list to dated 14.5.2003.'
8. It is further the conceded position that the name of the petitioner was shown in the eligible candidates at S.No. 1. Even though, it is now pleaded by the respondents that was a mistake on the part of the department that the petitioner's name was mentioned in the list of eligible candidates and for that reason only he was permitted to take the examination. As regards the third notification dated 14.8.2003, it is a common case between the parties that the petitioner was over-age by that time as also that there was no reference of first two notifications dated 21.1.2002 and 4.3.2003 when third notification dated 14.5.2003 was issued.
9. From the facts as mentioned above the petitioner was certainly eligible for the post under contention when first notification dated 21.1.2002 was issued. The department as mentioned above, has made a reference of the notification dated 21.1.2002 while issuing the notification dated 4.3.2003, pursuant to which the petitioner applied and was shown in the list of eligible candidates at S.No. 1 and was permitted to take examination as well. This notification too was cancelled and a fresh notification dated 14.8.2003 was issued. It is further proved that either before the Tribunal or before this Court the respondents did not give any reason as to why first two notifications were not taken to their logical ends. It is indeed stated that the respondents for valid and administrative reasons could well cancel the earlier notifications and further that it was prerogative of the respondents to make the recruitment while issuing any number of notifications.
10. We have given our thoughtful considerations to the points canvassed before us and are of the firm view that the respondents have thwarted a rightful claim of the petitioner on no cogent grounds whatsoever. Every individual has a natural desire to achieve all heights of excellence be it in business, profession or in service. No doubt, in service matters an employee has a chance to advance in his career depending upon service rules which may provide minimum and maximum age as well. If on a date when vacancy may accrue or fall vacant an employee as per service conditions pertaining to conditions inclusive of age may be eligible, he has every right to seek consideration of his name. This right of an employee cannot be scuttled by issuing successive notifications and in the process making an employee ineligible for the higher post. One may understand forfeiture of right of an employee on account of cancellation of earlier notifications if perhaps there may be a valid reason but strangely enough, in the present case, no reason whatsoever has been given. What instead has been asserted is that it is the prerogative of the employer to issue as many notifications as it may chose. As mentioned above, even though at places it has been pleaded that the respondents for valid and administrative reasons could cancel the earlier notifications but it may be reiterated that no such reasons have been given at all either in the pleadings or in the accompanying documents if any. It may be no right of a person to be appointed even after selection and if that is so surely he will have no right to seek appointment or promotion on the basis of a test but it is too well settled that there has to be a reason for not appointing a person after selection and cancelling the process of selection or the result thereof. If the course adopted by the respondents is permitted it will perpetuate total injustice in as much as the employer may await eligibility of a favorite candidate and till such time he may be eligible for the post under contention to carry on issuing advertisements and cancelling the same. This would be totally arbitrary and malafide.
11. In the petition it may be mentioned, it was pleaded that the respondents chose to issue a second advertisement on 4.3.2003. There is, as mentioned above, reference of notification dated 21.1.2002. In the notification dated 4.3.2003. As mentioned above, the petitioner did apply pursuant to the notification dated 4.3.2003 and was shown in the list of eligible candidates; so much so he was permitted to take the examination which was of course later cancelled resulting into third notification dated 14.8.2003. The respondents, it appears, chose a correct and a legal process when it issued notification on 4.3.2003 but chose not to do so while issuing notification dated 22.6.2003. The case set-up by the respondents that it is because of inadvertent mistake that the candidature of the petitioner was considered pursuant to the notification dated 4.3.2003 and for that reason only he was permitted to take the examination, appears to be an after thought. Assuming, however, it to be an inadvertent mistake the same cannot be permitted as surely an eligible candidate for the vacancy of 2000-2001, who had every right for consideration of his name for the post under contention, has been denied his legal right of promotion/selection. The issuance of notification dated 22.6.2003 making all those who were above 45 years of age as ineligible simply on account of fault of the respondents cannot come in the way of consideration of the petitioner for the post under contention. Non-inclusion of the name of the petitioner or for that matter others who may be eligible when notification dated 21.1.2002 was issued in the circumstances of the case is absolutely arbitrary. It is too well settled that arbitrariness and malafides vitiate everything.
12. Assuming that there was some administrative reason which compelled the respondents to issue successive notifications with regard to a vacancy pertaining to the year 2000-2001, the question that further may arise would be as to whether those who are eligible when first notification was issued can be made ineligible and be debarred even for being considered. In considered view of this court if fault may lie exclusive and at the end of the employer which may result into delay thus necessiating successive notifications for filling up of a vacancy that might have accrued earlier, those who are eligible when first notification came into being have to be considered. To illustrate, if in a selection some candidates may have been selected and the matter may be agitated in a court of law by challenging such selection in which, interim stay with regard to selected candidate may also be passed and in the process, selected candidates become overage and the selection may be quashed on some technical grounds, can selected candidates be held ineligible in the advertisement that may be issued for making recruitment after decision of the case. It appears to this court that it will be too iniquitous in such a situation to hold selected candidates ineligible having crossed, by that time, maximum age for recruitment on the concerned post.
13. The Hon'ble Supreme Court in The State of Andhra Pradesh v. T. Ramakrishna Rao and Ors., (1972) 2 SCC 830 when there was delay in holding the examination directed that if any of the respondents or any other candidates who had applied in 1968 had by this time became age barred by reason of the delay in holding the examination, he should not be disqualified from appearing in the examination if he was of the qualified age at the time when he had filled his application.
14. The facts of the case in the State of Andhra Pradesh v. T. Ramakrishna Rao and Ors. (supra), reveal that the respondents before the Supreme Court were Advocates. In pursuance to an advertisement issued on Nov. 8, 1968 they applied for the posts of District Munsifs in Andhra Pradesh for which at that time there were sixty vacancies. One of the qualifications required was that they should be below the age of 32 years on July 1, 1961. The Commission was to hold examination on May 7 and 8, 1969. The examination, however, could not be held as the candidates staged a walk out. The Commission thereafter issued another notice dated July 5, 1969 for holding another examination on July 25, 1969. This led to filing of the petition by the respondents Advocates for a direction restraining the Commission from holding the written examination and for a further direction to fill up the said posts by oral test only. It was urged on behalf of the respondents before the High Court that the Rules did not provide for written examination nor they provide for maximum and minimum marks. The High Court in view of the contentions made before it held that the Commission could not hold the examination under the government orders and issued a direction upon the Commission to that effect. There was debate with regard to Rule 5 with which this court is not concerned. Suffice it, however, to say that it is because of the defects in Rule 5 that the High Court had held and directed as mentioned above. The defects in Rule 5 pointed out by the High Court were thereafter removed. The Commission then proposed to call fresh applications and hold the examination for the purposes of filling up the vacancies of District Munsifs. This advertisement resulted into a fresh petition that was filed in the High Court. The contention once again primarily was that there could not be any written examination even as per the amended rule. The High Court, however, rejected the contentions as regards written examination or oral test and held that the Commission was entitled to make selection by first screening the candidates through the written test and make selection by oral test for being called for interview. In an appeal filed against the Judgment of the High Court, the Supreme Court however, held that the direction given by the High Court was unsustainable and the Commission and the State was perfectly justified in fixing a date for the examination and calling for fresh applications for all the vacancies to enable the Commission to prepare an approved list under and in accordance with the provisions of the amended Rule 5. It is in these circumstances that a further direction became necessary that if any of the respondents or other candidates who had applied in 1968 and by that time became age barred by reason of the delay in holding examination, he should not be disqualified from appearing in the examination if he was of the qualified age at the time when he had filed the application.
15. The petitioner in the present case, as mentioned above, has been deprived of his legitimate right of seeking appointment on the post of Diesel Chargeman (Electrical) for which he was certainly eligible when the first advertisement came into being on 21.1.2002. The vacancy was indeed available at that time. If for some reason, which we may mention again has however, not been given, it became necessary to readvertise the post, the petitioner could not be held ineligible if by that time, he had crossed the maximum age limit. Indeed such was the thought process of the respondent as well when second advertisement dated 4.3.2003 was issued. The petitioner was held eligible and had taken examination as well. The respondents, however, not only cancelled the notification dated 4.3.2003 but examination also. It is the positive case of the petitioner that he had secured sufficient marks in the written test for his appointment. This assertion made by the petitioner has not been specifically denied. What instead has been pleaded is that once the examination was as such cancelled it will be wholly immaterial as to how many marks the petitioner had secured. Be that as it may, it is manifest that while issuing third notification on 14.8.2003 the respondents made the petitioner ineligible for his having crossed the maximum age of 45 years for no fault of the petitioner. In the circumstances, therefore, the petitioner ought to have been considered eligible and permitted to take the examination pursuant to notification dated 14.8.2003.
16. In the facts and circumstances as mentioned above, we find that there will be no justification at this stage to cancel the notification dated 14.8.2003 and the result thereof but the petitioner should be permitted to take the examination for the vacancy that was advertised vide notification dated 14.8.2003 and if selected, should be appointed on the post for which he applied. A considerable time has already been lost in the litigation and, therefore, we direct that the petitioner be put to a written test as expeditiously as possible, preferably within a period of six weeks from today and the result be declared within two weeks thereafter. If selected and found suitable he be appointed to the post of Diesel Chargeman (Electrical). The Motion Bench, as already mentioned, has ordered that if any promotion is made on account of this third advertisement to the same post, the selection will be subject to the final decision on this writ petition. While appointing the petitioner, if selected, the respondents would make necessary adjustments. In the facts and circumstances they may not cancel appointment of the one already selected pursuant to the notification dated 14.8.2003 and thus may create a supernumerary post. If that however, be not possible the petitioner in any case would be given his due on his successfully competing in the written examination.
17. The writ petition is allowed in the manner indicated above. The order passed by the learned Tribunal dated 6.2.2004 is accordingly set-aside. The parties are however left to bear their own costs.