VINOD SHARMA Vs. STATE OF U P

JUDGEMENT

(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.

(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.