“Recruitment”, “Advertisement”, “Selection” and “Appointment” are different concepts under the service jurisprudence. “Recruitment” is the process of generating a pool of capable people to apply for employment in organization. Selection forms integral part of recruitment process, wherein from amongst eligible candidates, choice is made of person or persons capable to do the job as per the requirement. The process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. “Appointment” is made, after selection process is over, issuance of letter in favour of selected candidates, is an offer to selected candidate to accept the office or position to which he has been selected. On acceptance of the terms and conditions of appointment, the selected candidates on joining has to be accepted as appointed. Ravi Raj v. State of U.P., Writ – A No. – 26584 of 2011, decided on February 7, 2020
Tag Archives: Government Servant
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
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
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.
A Division Bench of the Hon’ble Allahabad High Court in State of U.P. v. Faini Singh, Special Appeal No. 416 of 2014 decided on 25.04.2014, while considering the provisions of Regulation 919 A (3) of Civil Service Regulations observed that the power of withholding or withdrawing pension is to be used in cases where allegations are of serious nature or grave misconduct and of causing pecuniary loss and it cannot be exercised mechanically merely on the pendency of any judicial proceedings without considering the allegations against the retired Government Servant. In other words, pendency of even judicial proceedings has not been recognized as a matter of right to withhold the pension.
In Bangali Babu Misra v. State of U.P., 2003 (3) AWC 1760, a Division Bench of the Hon’ble Allahabad High Court seised of a similar controversy held that in the absence of any provision under law, even if the petitioner is subjected to punishment in criminal proceedings that would not be a ground for withholding the post retiral benefits admissible to him. Radhey Shyam Chaubey v. High Court of Judicature at Allahabad, 2018 (3) AWC 2521.
Right To Be Considered For Promotion and Interest To Be Considered For Promotion – Distinction Between
A distinction between right to be considered for promotion and an interest to be considered for promotion has always been maintained. Seniority is a facet of interest. The rules prescribe the method of recruitment/selection. Seniority is governed by the rules existing as on the date of consideration for promotion. Seniority is required to be worked out according to the existing rules. No one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects chances of promotion of a person relates to conditions of service. The rule/provision in an Act merely affecting the chances of promotion would not be regarded as varying the conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service. However, once a declaration of law, on the basis of existing rules, is made by a Constitutional Court and a mandamus is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration of law and the mandamus and directions issued by the Court is the result of the declaration of law and not the operation of the rules per se. Pankaj Singh v. State of U.P., 2018 (3) AWC 2380.
When a departmental enquiry is conducted against the Government servant, it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The Inquiry Officer has to be totally unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a Government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
In Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570, it was held as under:
“Indisputably, a departmental proceeding is a quasi judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.” Ram Prakash Pal v. Chairman, 2018 (4) AWC 3952.
The Hon’ble Supreme Court in the matter of Union of India v. Dr. Sudha Salhan, (1998) 3 SCC 394, while agreeing to the decision of Union of India v. K.V. Jankiraman, (1991) 4 SCC 109, has held that if on the date on which the name of the person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the sealed cover procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a sealed cover only if on the date of consideration of name for promotion the departmental proceedings had been initiated or were pending or on its conclusion, final order had not been passed by the appropriate authority. Gyan Prakash Pandey v. State of U.P., 2018 (4) AWC 3859.
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.