B.K. Ray, J. - (1.)THE four Petitioners after selection were appointed as out -door clerks on Nominal Muster Roll (N.M.R.) basis for a period of three months with effect from 20 -1 -1975 under Paradip Port Trust (opp. party No. 1). These posts are borne in the Traffic Department of the Port Trust. The Traffic Manager (opp. party No. 3) under opp. party No. 1 is the Head of that Department, and as such, is the appointing authority of the outside clerks. During their tenure of service for three months on N.M.R. basis the Traffic Manager found the work of the Petitioners satisfactory as appears from Annexures 2 and 3. After the expiry of the period of three months for which the Petitioners had been appointed as there was great need for out door clerks and as it was felt that to appoint the required number of out -door clerks in a regular way would take time, the Traffic Manager by virtue of the power vested in him under Regulation 17(i) of Paradip Port Employees (Recruitment, Seniority and Promotion) Regulations, 1967 (hereinafter called the Paradip Port Regulations) appointed the Petitioners once again as out -door clerks for a period of six months with effect from 5 -5 -1975 (vide Annexure -4). But before appointing the Petitioners under Annexure 4 the vacancies to which they were appointed had not been notified under Section 4 of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (hereinafter called the Employment Exchange Act). Therefore the Employment Exchange Officer (opp. party No. 4) asked opp. party No. 3 (vide annexure -7) to terminate the services of the Petitioners as they are appointed without compliance with the provisions of Section 4 of the Employment Exchange Act. Accordingly, the services of the Petitioners were terminated with effect from 10 -5 -1975 (vide Annexure -6). But in spite of such termination the Petitioners worked on N.M.R. basis till 19 -7 -1975. Thereafter as opp. party No. 4 insisted that appointment to the posts of out -door clerks must be made from amongst the candidates sponsored by the Employment Exchange Office, the Secretary, Para dip Port Trust asked opp. party No. 4 to sponsor the names of some persons for appointment as out -door clerks. Even though the Petitioners had registered their names in the Employment Exchange long before the aforesaid request was made, opp. patty No. 4 did not sponsor their names on the plea that by the time opp. party No. 4 sponsored the names of persons to be appointed as out door clerks the Petitioner were working under opp. party No. 1 on N.M.R. basis. The Port Trust authorities selected opp. party Nos. 13 to 20 for appointment as out -door clerks. The Petitioners thereafter approached opp. party No. 3 with a complaint that their names were not being sponsored by opp. party No. 4. It was after this opp. party No. 4 sponsored the names of the Petitioners. Thereafter opp party Nos. 5 to 12 were selected for appointment as our -door clerks in the Traffic Department of the Port Trust and not the Petitioners even though the names of opp. party Nos. 5 to 12 had not been sponsored by opp. party No. 4, their names not having been registered in the Employment Exchange. The appointment of opp. party Nos. 5 to 12 was therefore, in violation of Annexure 7 in accordance with which the appointment of the Petitioners was terminated as they had been appointed without compliance with the provisions of the Employment Exchange Act. The Petitioners were more qualified than opp. party Nos. 5 to 12 as the (Petitioners) had worked as outdoor clerks on N.M.R. basis in the Traffic Department whereas opp. party Nos. 5 to 12 had experience of working as out -door clerks in Departments other than the Traffic Department. In appointing opp. party Nos. 5 to 12 as out -door clerks in the Traffic Department opp. party Nos. 1 to 3 did not consider the cases of the Petitioners and thereby violated the provisional of Article 16 of the Constitution. People belonging to the same class and similar situated are entitled to equality of opportunity in matters relating to employment or appointment. This action on the part of opp. party Nos. 1 to 3 smacks of arbitrariness and favoritism. As per the order of the opp. party No. 1 (vide Annexure 9) N.M.R. employees have to be absorbed first in preference to direct recruits, if they are qualified as per the recruitments rules. The Petitioners having possessed all the necessary qualifications as per the recruitment rules and they being N.M.R. employees in the Traffic Department, there was no justification for excluding them £rem consideration while appointing opp. party Nos. 5 to 20. In these circumstances the Petitioners were entitled to be considered either when opp. party Nos. 13 to 20 or when opp. party Nos. 5 to 12 were appointed, particularly when competent authority in the Paradip Port Trust had expressed satisfaction with the work of the Petitioners as outdoor clerks. On these allegations the Petitioners have come up to this Court with an application under Article 226 of the Constitution praying inter alia that there should be a direction to the authorities to allow the Petitioners to continue in the posts of out -door clerks in the Traffic department by virtue of their appointment under Annexure 4 until ratification by the Staff Selection Committee or to absorb them as regular recruits in accordance with Annexure 9 or to consider their cases along with opp. party Nos. 5 to 20 for appointment to the posts of out -door clerks after quashing the appointments of these opp. parties, So far as the other reliefs claimed by the Petitioners in the writ application are concerned, it is not necessary to refer to them as they have not been pressed at the time of bearing of the Case.
(2.)IT is the positive stand of opp. party Nos. 1 to 3 that by two selections opp. party Nos. 5 to 20 were selected. The staff selection committee selected opp. party Nos. 13 to 20 only on 17 -6 -1975 and the Screening Committee selected opp. party Nos. 5 to 12 on 22 -8 -1975. Even though those selections were made on two different dates, opp. party Nos. 5 to 20 were appointed one and the same day i. e., 16 -9 -1975 (vide Annexure -A -1). The staff selection committee which met on 17 -6 -1975 was meant to consider outsiders for the posts of outdoor clerks. The Petitioners were at that time in employment as out -door clerks on N.M.R. basis under the Port Trust. So they could not be considered along with opp. party Nos. 13 to 20. Further there was no application by the Petitioners praying for their regular appointment at that time. Regarding opp. party Nos. 5 to 12 the case of opp. party Nos. 1 to 13 is that as per the order of the Chairman of the Port Trust dated 7 -6 -1962 (vide Annexure 9) N.M.R. employees were to be absorbed first against vacancies if they had the requisite educational qualification as per the recruitment rules. The Petitioners could not be considered on 22 -8 -1975 by the screening committee as the said selection was confined to N.M.R. employees who were in service on that date and as the Petitioners' employment on N.M.R. basis had come to an end prior to that date. In these circumstances, the Petitioners cannot make any grievance about their non -consideration either on 17 -6 -1975 along with opp. party Nos. 13 to 20 or on 22 -8 -1975 along with opp. party Nos. 5 to 12. That apart according to opp. party Nos. 1 to 3, opp. party Nos. 5 to 12 were in employment under opp. party No. 1 on N.M.R. basis since long they having been appointed between 1 -1 -1969 and 14 -3 -1973, whereas the Petitioners' appointment on N.M.R. basis commenced on 20 -1 -1975 and terminated on 19 -7 -1975. Thus as N.M.R. employees the Petitioners were junior to opp. party Nos. 5 to 12. The selection of opp. party Nos. 5 to 12, therefore was ex facie, just and equitable. The further stand of opp. party Nos. 1 to 3 is that the Petitioners have no locus standi to maintain the writ application as there has not been any infraction of any of their existing legal rights. The recruitment rules relied upon by the Petitioners are not statutory but executive in nature. Regulation 7 of Paradip Port Regulations empowers the Board to lay down the manner of filing in vacancies by direct recruitment and departmental promotion and the age limit, educational qualification and experience for direct recruitment in respect of various grades or posts. The Board has under Section 28 of Major Port Trusts Act, 1963 power to makes regulation framed by the Board shall be valid unless the same is approved by the Central Government. Therefore there being nothing to show that the recruitment rules relied upon by the Petitioners have been approved by the Central Government, the said rules cannot be said to have any statutory force. In the absence of any statutory rule opp. party No. 1 is free to fill up the vacancy in any post in a just and equitable manner. Without nothing to show that the appointments of opp. party Nos. 5 to 20 are in any way unjust or inequitable this Court cannot interfere with the impugned order of their appointments.
Opp. party Nos. 5, 10, 12, 17 and 18 have filed one counter denying the Petitioners' case. It is not necessary to state in detail the case of these opp. parties whose appointments have been challenged by the Petitioners. Suffice it to say that their stand, as evidenced from the counter filed by them is similar to that of opp. party Nos. 1 to 3. Opp. party No. 4 in a separate counter has denied all allegations made against him and has narrated in detail the circumstances under which the names of the Petitioners could not be sponsored by the Employment Exchange at the earliest opportunity. In the said counter it has been said that the Employment Exchange sponsored 142 candidates on 30 -6 -1975 for appointment as out door clerks under the Port Trust. The Petitioners were not included within those 142 candidates as by then they were working as out door clerks on N.M.R. Basis. The reason for non inclusion of the names of the Petitioners is that the Employment Exchange is required to sponsor the names of persons not in Employment. According to opp. party No. 4. Petitioners worked on N.M.R. basis till 19 -7 -1975. But when the Employment Exchange sponsored a second batch of names numbering 18 on 28 -7 -1975, the names of the Petitioners were included therein as by then they were out of employment. It has been further specifically asserted by opp. party No. 4 in his counter that inter view for the posts of out door clerks was held by the Port authorities after 28 -7 -1975, and so both the lists sent by the Employment Exchange were before the Port authorities by the time candidates were selected for appointment.

Mr. G.A.R. Dora, learned Counsel for the Petitioner first of all urges that the stand taken by opp. party Nos. 1 to 3 that opp. party Nos. 13 to 20 were selected for appointment on 17 -6 -1975 must be rejected and that it must be held that the selections were made after receipt of all the names sent by the Employment Exchange in two batches as mentioned in the counter of opp. party No. 4. There seems to be much force in this contention. In paragraph 8 of their counter opp. party Nos. 1 to 3 say as follows:

Opp. party Nos. 13 to 20 were selected by the staff selection committee constituted for the period consisting of the Deputy Conservator as Chairman and the Secretary, Paradip Port Trust and the Traffic Manager as Members, Opp. party Nos. 1 and 2 were not in this committee. Under the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 the vacancies in the posts of out door clerks were notified to the Employment Exchange on which basis the, Employment Exchange sponsored candidates and the selection of the candidates were made by the staff selection committee aforesaid on 17 -6 -1975. This committee considered the cases of those who appeared in the interview before them. The Petitioner did not apply for these regular posts nor their names are sponsored by the Employment Exchange. Therefore, their cases could not be considered by the committee. The Petitioners admit in para 16 of the petition that their names were sponsored subsequently after the selections had been made by the committee as aforesaid. So the question of violation of Article 16 of the Constitution does not arise in this case.

The aforesaid passage clearly shows as if opp. party Nos. 13 to 20 were selected by the staff selection committee after their names were sponsored by the employment exchange. But it appears from the counter of opp. party No. 4 that the employment exchange sent the first batch of 142 names on 30 -6 -1975. That being the position, the stand of opp. party Nos. 1 to 3 that opp. party Nos. 13 to 20 were selected on 17 -6 -1975 out of the names sponsored by the employment exchange cannot be accepted. No document has been produced before me to accept the case of opp. party Nos. 1 to 3 on this aspect. Further as appears from the counter filed by opp. party Nos. 1 to 3, opp. party Nos. 5 to 20 who were selected in two batches on 17 -6 -1975 and 22 -8 -1975 were actually appointed on 16 -9 -1975 (vide Annexure -A/I). Therefore the plea taken by opp. party Nos. 1 to 3 that opp. party Nos. 13 to 20 were selected for appointment on 17 -6 -1975 must be rejected. Mr. Dora then argues that according to opp. party Nos. 1 to 3, the second selection by the Screening Committee in which opp. party Nos. 5 to 12 were selected was made on 22 -8 -1975. Those opp. parties do not say if on any other date, besides on 17 -6 -1975 and 22 -8 -1975 there was any selection. I have already disbelieved the case of opp. party Nos. 1 to 3 that there was any selection on 17 -6 -1975. It follows therefore that whatever selection was made was on 22 -8 -1975. This is also in consonance with the stand taken by opp. party No. 4 who says that selections were made only after two batches of names were sent by the Employment Exchange. Admittedly, by 22 -8 -1975, the Employment Exchange had sponsored the names of the Petitioners. So by the date of the selection which took place on 22 -8 -1975 the Port authorities had before them the names of the Petitioners. Opp. party Nos. 1 to 3 admit that the Petitioners have never been considered for appointment, because according to them, the first selection made on 17 -6 -1975 being confined to outsiders the Petitioners who were then working on N.M.R. basis could not be considered and the second selection on 22 -8 -1975 being meant to absorb the N.M.R. employees, the Petitioners not being in Employment by then, were also not considered. It thus appears that the Petitioners were never considered for appointment. According to the finding arrived at by me, all the selections having been made after all the names including the names of the Petitioners were sponsored by the Employment Exchange, there was no justification for opp. party Nos. 1 to 3 to exclude the Petitioners from consideration. So Mr. Dora argues that there has been a discrimination and hence the appointment of opp. party Nos. 5 to 20 as per annexure A/1 must be struck down as violative of Article 16 of the Constitution. This contention of Mr. Dora is bound to prevail in part as would be evident from the subsequent paragraphs. To repel the contention of Mr. Dora, it is argued by Mr. R. Mohanty learned Counsel for the Port Trust, that the Petitioners not having been able to show infraction of any of their legal rights they will not be permitted to challenge the order of appointment of opp. party Nos. 5 to 20 which according to Mr. Mohanty is just and equitable. It is further argued that under regulation 7 of Paradip Port Regulations the Board of Paradip Port Trust has been vested with power to lay down the method and manner of filling in vacancies in various grades or posts. These Regulations having been framed by the Central Government in exercise of their power under Section 28 read with Section 126 of the Major Port Trust Act has statutory force. But the provisions to be made by the Board for filling up vacancies in various grades or posts cannot be statutory in nature. It is then argued that the regulations to be framed by the Board under Section 28 of the Major Port Trusts Act must have to be sanctioned by the Central Govt. under Section 126 of the said Act, before they became valid and enforceable. The rules relied upon by Mr. Dora which say that vacancies in the posts of out door clerks have to be filled up by direct recruitment do not appear to have been sanctioned by the Central Govt. and so infringement of the said rules cannot give rise to a cause of action in favour of the Petitioners. The points raised by Mr. Mohanty can be of no avail to opp. party Nos. 1 to 3 when examined in the context of the facts and circumstances of the present case even though as independent propositions of law they may be accepted as sound. Let me assume that the rules relied upon by Mr. Dora have no statutory force. But opp. party Nos. 1 to 3 admit that they filled up the posts of out door clerks in two ways, viz. by direct recruitment as well as by absorbing people working under the Port Trust. on N.M.R. basis. According to these opp. parties. opp. party No. 13 to 20 are direct recruits and opp. party Nos. 5 to 12 are persons who have been absorbed as they were working on N.M. R: basis previously as per the decision of the Chairman (vide Annexure -9). Paradip Port Trust is a body created by the Major Port Trust Act. The post of an out -door clerk under Paradip Port Trust must therefore be held to be a public office. Article 16 of the Constitution guarantees to every citizen equality of opportunity in matters relating to employment or appointment to any public office. Therefore even in the absence of any statutory rule or regulation governing appointment of a person to the office of an out door clerk every citizen must be given opportunity of being considered for appointment to the said office; provided he is qualified for the same. The executive authority of the Paradip Port Trust has no doubt, power to make appointments in various grades or posts under the Port Trust even though statutory rules or regulations have not been framed laying down the manner and method of recruitment. While conceding this power in favour of the executive, it must always be borne in mind that the executive authorities in making the appointments cannot ignore the fundamental right guaranteed to a citizen under Article 16 of the Constitution. Therefore for a remedy against an infringement of this right a citizen has always the option to invoke the jurisdiction of this Court under Article 226 of the Constitution. So conceding that there is no statutory rule and that therefore the Petitioners cannot complain of violation of any such rule, if it is shown by them that the executive of Paradip Port Trust in appointing opp. party Nos. 5 to 20 as per its order (Annexure -A/l) has acted in an arbitrary and capricious manner as a result of which the Petitioners have been denied the right guaranteed to them under Article 16 of the Constitution this Court will not refuse relief to them. The Petitioners, it is not disputed, worked in the Traffic Department as out door clerks on N.M.R. basis for a period of three months commencing from 20 -1 -1975. Annexure 2 shows that during this period the work of the Petitioners was found satisfactory by the Traffic Manager, the Head of the Department. Annexure -3 shows that the Traffic Manager being satisfied with the work of the Petitioners recommended for extension of their service. As filling up the posts which the Petitioners were holding on N.M.R. basis in a regular manner would take time the Traffic Manager, in exercise of his power under regulation 17(ii) of the Paradip Port Regulations, appointed the Petitioners for a period of six months. The Employment Exchange having raised objection to their appointments as filling up those posts for a period of six months were not notified as required under Section 4 of the Employment Exchange Act, the appointments of the Petitioners were terminated by opp. party Nos. 1 to a. In spite of such termination the Petitioners were allowed to work as N.M.R. basis till 19 -7 -1975. These facts are not disputed. The irresistible conclusion there fore is that the Petitioners were qualified for the posts in question. There is also no dispute that the Petitioners had registered their names in the Employment Exchange. When in order to fill up the vacant posts the Port authorities asked the Employment Exchange to sponsor the names of candidates it sponsored in the first batch 142 names of candidates on 30 -6 -1975. That being so, opp. party Nos. 13 to 20 could not have been selected on 17 -6 -1975. I have rejected the stand of opp. party Nos. 1 to 3 on this point. As per the case of opp. party No. 4, it sponsored the second batch of names including the names of the Petitioner on 28 -7 -1975 and it is the positive stand of opp. party No. 4 that selection for the posts of out door clerks was made by the Port Trust authorities on 28 -7 -1975. The Petitioners also assert likewise. According to opp. party Nos. 1 to 3, opp. party Nos. 5 to 12 were selected on 22 -8 -1975 and this selection was confined to N.M.R. personnel only. Such a case has not been accepted by me and I have already held that opp. party Nos. 5 to 20 were all selected after receipt of the second batch of names from the Employment Exchange on 28 -7 -1975. It necessarily follows that at the time of selecting opp. party Nos. 5 to 20 the Paradip Port authorities did not consider the claims of the Petitioners even though their names had been sponsored by the Employment Exchange and they had the necessary qualifications. Non consideration of the claims of the Petitioners is not disputed by opp. party Nos. 1 to 3. Certainly; by 28 -7 -1975 when the Employment Exchange sent the second batch of names including the names of the Petitioners the latter were not in Employment. Therefore, by the date of selection which took place subsequent to 28 -7 -1975 the Petitioners had no claim on the st length of annexure -9 and there being nothing to throw out the case of opp. party Nos. 1 to 3 that opp. party Nos. 5 to 12 were in Employment on N.M.R. basis on the date of selection and that as N.M.R. employees opp. party Nos. 5 to 12 were senior to the Petitioners, one cannot possibly find any fault in the selection of opp. party Nos. 5 to 12 in preference to the Petitioners. Even if the Petitioners should have been considered along with opp. party Nos. 5 to 12, the latter would have been preferred to the Petitioners on the basis of annexure -9. Hence the appointment of opp. party Nos. 5 to 12 cannot be challenged. From the discussions made above Mr. Mohanty's argument that the appointment of opp. party Nos. 5 to 20 being just and equitable is beyond question has to be accepted only with respect to appointment of opp. party Nos. 5 to 12. But the cases of opp. party Nos. 13 to 20 stand on a different footing. They are outside candidates just like the Petitioners. In view of the undisputed position that the Petitioners although duly qualified and sponsored by the Employment Exchange were not considered along with opp. party Nos. 13 to 20, the grievance of the Petitioners that the constitutional guarantee under Article 16 to which they are entitled has been violated cannot be thrown out. No justification has been shown as to why the Petitioners though sponsored by the Employment Exchange and possessed requisite qualification and previous experience were not considered along with opp. party Nos. 13 to 20, I am therefore inclined to hold that the Petitioners have a case as against opp. party Nos. 13 to 20.

(3.)IN view of the foregoing conclusions it is not necessary to decide the other point raised by Mr. Dora, such as there must have been advertisement before filling up the posts in question.