R.A. Sharma, J. - (1.) WHETHER appoint ment to Group B post in U.P. State Industrial Development Corporation (hereinafter referred to as the Corpora tion), which under the service rules is re quired to be filled in "by open market selec tion", can be made without advertising the post, is a question which is involved in this writ petition.
(2.) SMT. Kanak Misra, respondent No. 5 was a Group D employee, holding the post of Telephone Operator in the Corporation, having been appointed in 1991. Vide order dated 25-3-1994 she was appointed by way of direct recruitment as Assistant Manager (Legal) by the Managing Director of the Corporation. However, before making her appointment, neither the said post was notified to the Employment Exchange nor was it advertised in the newspapers. Being aggrieved the petitioners have filed this writ petition, challenging the appointment of respondent No. 5 as Assistant Manager (Legal), which is Group B post. We have heard Sri Ashok Khare for the petitioners, Sri J.N. Tiwari for the Cor poration, Sri Ramendra Asthana for respondent No. 5 and the learned Standing Counsel for the State. Sri Ashok Khare, learned counsel for the petitioners has made two submis sions, namely, (i) respondent No. 5 could not have been appointed to the post of As sistant Manager (Legal) without advertis ing the post; and (ii) her appointment has been made on extraneous consideration, Learned counsel for the respondents, apart from disputing the said submissions, have also disputed the locus standi of the petitioners to challenge the appointment of respondent No. 5. Before dealing with the submissions on merit, it is appropriate to deal with the preliminary objection regard ing the locus standi at the threshold.
(3.) THE corporation is a Company in corporated under the Companies Act whol ly owned by the Government of U.P. respon dent No. 5 in paragraph 15 of her counter affidavit has admitted this position and the same has also not been disputed by the Cor poration. THE Corporation is thus, an in strumentality of the Government and is "State" within the meaning of Article 12 of the Constitution of India. Petitioners Nos. 1 to 8 holding various posts in the Corpora tion and some of them being Law- Graduate are also eligible for appointment to the post of Assistant Manager (Legal) if the selec tion is made by direct recruitment. Had the post been advertised, some of them would have applied for the same and got their applications considered on merit in competition with the respondent No. 5. Right to apply for a post under the State or its in strumentality and the right to get it con sidered on merit is a fundamental right guaranteed to a citizen under Article 16(1) of the Constitution of India. If the post is not advertised, the opportunity to apply for it is denied, with the result that the right under clause (I) of Article 16 stands infr inged. THE petitioner are, therefore, en titled to challenge the appointment of respondent No. 5. THE preliminary objec tion is rejected. There are not statutory rules govern ing the conditions of service of the employees of the Corporation. However, the Board of Directors of the Corporation has framed non-statutory rules, known as U.P. State Industrial Development Cor poration Employees Service Rules (hereinafter referred to as the Rules). Chap ter III of the Rules consisting of Rules 16 to 27 provides for recruitment/appointment to the posts in Group A, B, C and D and other consequential and incidental matters in connection therewith. Rule 18, which deals with the source of recruitment, is reproduced below:- "18. Source of recruitment:- Appointments may be made either- (a) by direct recruitment; (b) by promotion of the Corporation employees through a departmental test or an in terview of selection or by any other manner prescribed by the Board from time to time; (c) by deputation or employment on con tract basis, (d) from any other source as approved by the Board. All Group A posts in the Corporation shall be selection posts and will be filled by selection. Such of those Corporation employees who are eligible in terms of qualification, age and ex perience may also compete for selection. Seventy-five per cent of the Group B posts will be filled in by open market selection and the rest will be filled from the employees of the Cor poration. Fifty per cent of the Group C posts other than at the lowest level will be fitted in by open market selection and the rest will be filled from the employees of the Corporation. Seventy five per cent of the Group C posts at the lowest level will be filled in by open market selection and the rest will be filled up by the promotion from Group D staff of the Corpora tion. The recruitment from amongst the employees of the Corporation by promotion will be made only if suitable candidates with requisite qualifications are available. In case the sufficient number of employees are not available for filling in the quota by promotion, these posts may also be filled in by open market selection and there be no accumulation or carry over to subsequent years. In recruitment by promotion, the criteria of seniority subject to the rejection of 'unfit for hold ing the higher post shall apply. Notwithstanding anything contained in the above Rules regarding sources of recruitment, the Appointing Authority will have full powers to modify the source of recruitment of the stipulated percentage for direct recruitment/promotion and the decision of the Appointing Authority shall in each such case, be final". (Emphasis supplied) Rule 19, which deals with the manner of selection is also reproduced below:- "(19) Selection.-Selection for the various posts in the Corporation either by direct recruit ment or by promotion from within shall be made by a Committee of not less than 3 persons duly constituted by the Board of Directors. The Selec tion Committee may draw up a panel of names of candidates fit for selection and furnish it to the Appointing Authority together with its recom mendations in the order of merit. While drawing up the list and recommending the order of merit, the Committee shall keep in mind the Govern ment orders issued from time to time regarding reservations for members of scheduled castes, scheduled tribes, backward classes etc. Notwithstanding anything contained in the Rules the appointing authority may decide any other mode of selection for filling up the posts and the decision of appointing authority shall be final and that appointments may be made by the Managing Director to any posts, whether created or not, in the Corporation on an ad hoc basis for a period not exceeding three months or till next Board Meeting whichever is later to meet any emergent situation." (Emphasis supplied) According to Rule 18 seventy-five per cent of the Group B posts are to be filled in by "open market selection" and the remain ing are to be filled on the basis of promotion from the employees of the Corporation. When the Rules require filling in a post "by open market selection", it is obligatory for the Corporation and its functionaries to ad vertise the post/vacancy inviting applica tions from eligible persons for appoint ment. Selection from open market is not possible unless the posts are duly adver tised. That apart, it is not open to the state or it instrumentality to make appointment to a post by way of direct recruitment without advertising the said post. Article 16 of the Constitution of India provides for equality of opportunity to all citizens in the matters of public employment. This Article guarantees a right to every citizen to make an application for any post under the State and to get it considered on merit in accord ance with law. Supreme Court in Ashok Kumar and others v. Chairman Banking Ser vice Recruitment Board and others, (1996) 1 SCC 283; has laid down as follows: "Article 14 read with Article 16(1) of the Constitution enshrines fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be con sidered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and depreca tion of the constitutional right under Article 14 read with Article 16(1) of the Constitution." In Krishna Chandra v. Central Directors Organisation, AIR 1962 SC 602, the Supreme Court has held as under: "The fundamental right guaranteed by the Constitution is not only to make an application for the post under the Government but the further right to be considered on merit for the post for which an application has been made. Of course, the right does not intend to be actually appointed to the post for which an application may have been made." The right under Clause (1) of Article 16 of the Constitution is guaranteed to each citizen with reference to each occasion of recruitment. In this connection reference may be made to T. Devadasan v. Union of India and another, AIR 1964 SC 179, wherein the Supreme Court has laid down as follows:- "We would like to emphasise that the guarantee contained in Article 16(1) is for ensur ing equality of opportunity for all citizens relating to employment and to appointments to any office under the State. This means that on every oc casion for recruitment the State should see that all citizens are treated equally. The guarantee is to each individual citizen and, therefore, every citizen, who is seeking employment or appoint ment to an office under the State is entitled to be afforded an opportunity for seeking such employ ment or appointment whenever it is intended to be filled." Although T. Devadasan 's case (supra) has been overruled by the Supreme Court in Indra Sawhney v. Union of India, AIR 1993 SC 477, on another point; but the aforesaid passage has been cited with the approval while declaring that a year should be taken as the unit for applying the rule of fifty per cent reservation.;