- (1.) B. S. Chauhan, J. This writ petition has been filed challenging the judgment and order of the Central Administrative Tribunal dated 6-6-2003 by which it has upheld the order passed by the General Manager, North Eastern Railways dated 3-2-2003, rejecting the candidature of the petitioner on medical ground and further direction to provide him an alternative suitable job according to his medical category.
(2.) FACTS and circumstances giving rise to this case are that the post of Assistant Station Masters were advertised by the Railway Recruitment Board. Petitioner after qualifying in the written examination etc. when found to be eligible and suitable, went through the medical examination wherein he was not found fit as per the requirement for the said post and, therefore, vide order dated 3-2-2003 passed by Respondent No. 2, he was not appointed rather found unfit. Petitioner made a representation before the respondents to appoint him on some other post as per his physical fitness subject to other eligibilities. But no order was passed on his representation. Being aggrieved, petitioner approached the Central Administrative Tribunal challenging the said order, which has been rejected by the impugned judgment and order dated 6-6-2003, hence this petition. Learned Counsel for the petitioner has submitted that the learned Tribunal has committed gross error in rejecting the claim of the petition for alternative job according to his medical fitness and, therefore, the order of the tribunal is liable to be set aside. On the contrary, learned Standing Counsel has opposed it contending that once the petitioner had applied for the post of Assistant Station Master and could not be selected for the same, he cannot claim to give appointment on any other alternative post as per his medical fitness. We have considered the rival submissions made by learned Counsel for the parties.
(3.) IT is settled legal proposition that in public employment, as of Rule, appointment is to be made by inviting applications from all eligible candidates by issuing advertisement and after considering their suitability. it is not permissible to fill up a vacancy without advertising as it would violate the fundamental rights guaranteed under Articles 14 and 16 of the Constitution of India,1950, of those candidates who are eligible for the said post and had not been given a chance to apply and being considered. An appointment can be made as an exception without advertising the vacancy only as per Rules/scheme providing appointment on compassionate grounds to the dependants of the employees who die in harness. What to talk of appointing a person without advertising the vacancy, law does not permit to fill up the vacancy over and above the number of the vacancies advertised. In Prem Singh and Ors. v. Haryana State Electricity Board and Ors. , 1996 (2) LBESR 694 (SC) : 1996 (4) SCC 319, the Apex Court observed as under: ". . . . . . . . The selection process by way of the requisition and advertisement can be started from clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only, the State cannot make more appointments than the number of posts advertised. . . . . . . . The State can deviate from the advertisement and make appointments on the posts falling vacant thereafter in exceptional circumstances for only or in an emergent situation and that too by taking a policy decision in that behalf. ";