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. 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. 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. We have heard the learned counsel appearing for the parties and examined the records of the case. 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.
(3.) 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. " 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. 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. ;