Dr. (Major) Meeta Sahai v. State of Bihar; 2019 SCC OnLine SC 1632, Hon’ble Supreme Court has held as under: “However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.” Mohan Lal Yaduwanshi v. State of U.P, Service Bench No. – 18370 of 2019, decided on January 13, 2020
Tag Archives: Appointment
In Shankarsan Dash v. Union of India, (1991) 3 SCC 47, a Constitution Bench of the Hon’ble Supreme Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. It was held as under: “It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.” Mohd. Rashid v. Local Bodies, (2020) 2 SCC 582
In Ritesh Tiwari v. State of U.P. (2010) 10 SCC 677, it was held as under:— “It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits. Saraswati Vidya Mandir Inter College V. State of U.P., Writ C. No. 16120 of 2009 Connected with Writ – C. No. 26354 of 2009, decided on 18.05.2020.
On perusal of Section 16-FF of the U.P. Intermediate Education Act, 1921, it is evident on the face of it that without approval of the District Inspector of Schools, no appointment on the post of Lecturer or Assistant Teacher in L.T. Grade can be made in the institution recognized under the Act of 1921. It is further clarified that on submission of papers in case the District Inspector of Schools do not pass any order within a period of 1 month, then the selection is deemed to have been approved. Dr.Hemant Chaudhary V. State of U.P., Writ – A No. – 1821 of 2020, Decided on March 3, 2020
An important requirement of public employment is transparency. Therefore, the advertisement must specify the number of posts available for selection and recruitment. The qualifications and other eligibility criteria for such posts should be explicitly provided and the schedule of recruitment process should be published with certainty and clarity. The advertisement should also specify the rules under which the selection is to be made and in absence of the rules, the procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process is commenced, thereby unjustly benefiting someone at the cost of others. Ram Krishna v. State of U.P., 2018 (3) AWC 2702.
The law in case of appointment obtained fraudulently is well settled. Fraudulently obtained order of appointment or approval can be recalled by the authority concerned. In such cases merely because the employee continued in service for a number of years, on the basis of fraudulently obtained order, cannot get any equity in his favour or any estoppel against the employer/authority. When appointment or approval has been obtained by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer. It would create no equity in his favour or any estoppel against the employer to cancel such appointment or approval since “Fraud and Justice never dwell together.” Smt. Usha Singh v. State of U.P., 2018 (4) AWC 3680.
When an appointment, even if legal and valid, but contractual one, is governed by certain terms and conditions thereof, parties are bound to adhere to those conditions and cannot travel beyond that. Once appointment is made for fixed tenure, it would come to an end automatically on expiry of period for which appointment was made. The termination is automatic by efflux of time on expiry of said period. The continuance of person thereafter would not be on the basis of said agreement pursuant whereto incumbent was was appointed for a fixed tenure, it has already come to an end by efflux of time. Raj Kumar Singh v. State of U.P., 2018 (5) AWC 4967.
In P. Mohanan Pillai v. State of Kerala, 2007 (113) FLR 4420, it was held that once a selection proceeding has been initiated and during the pendency of the selection proceeding, if rule is amended, that will not effect the selection proceeding already going on. The relevant paragraph of the judgment is as under: “Why such a decision had been taken had been taken after the publication of the result of the written examination and after calling 36 candidates for interview is not known. Why the company intended to enlarge the zone of consideration from 1 : 3 to 1 : 4 has also not been disclosed. Why the cut off mark was also lowered remained a mystery. It may be that in a given situation, a decision of the State may be changed, but therefore good and sufficient reasons must be assigned. The company failed to do so. The decision taken in this behalf smacks of arbitrariness. It is now well settled that ordinarily rules which were prevailing at the time, when the vacancies arose would be adhered to. The qualification must be fixed at that time. The eligibility criteria as also the procedures as was prevailing on the date of vacancy should ordinarily be followed.” Naresh Chandra Gupta v. Collector, Meerut, 2019 (160) FLR 1030
Even though it is settled that a person appointed erroneously on a post must not reap the benefits of wrongful appointment jeopardizing the interests of the meritorious and worthy candidates; in cases where a wrongful or irregular appointment is made without any mistake on the part of the appointee and upon discovery of such error or irregularity the appointee is terminated, the Court had taken a sympathetic view in the light of various factors including bona fide of the candidate in such appointment and length of service of the candidate after such appointment. Ram Naresh Singh v. State of U.P., (2018) 3 UPLBEC 2134.