“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: Mode of Recruitment
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
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.
Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts, it was held in SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122, as under:
“the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity must plead necessary averments and prove that all things are equal between the posts concerned. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties.”
It was held in Union of India v. P.K. Roy, AIR 1968 SC 850 that the following factors had been held to be determinative for considering the equation of posts,:
1. The nature and duties of a post;
2. The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;
3. The minimum qualifications, if any, prescribed for recruitment to the post; and
4. The salary of the post.
After referring to Union of India v. P.K. Roy, AIR 1968 SC 850, the Hon’ble Apex Court, in SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122, held as under:
“25. In State of Maharashtra v. Chandrakant Anant Kulkarni, (1981) 4 SCC 130 and L.N. Mithila University v. Dayanand Jha, (1986) 3 SCC 7, a similar view has been reiterated observing that equal status and nature and responsibilities of the duties attached to the two posts have to be taken into consideration for equivalence of the post. Similar view has been reiterated in E.P. Royappa v. State of T.N., (1974) 4 SCC 3 Rooplal v. Lt. Governor, (2000) 1 SCC 644, wherein the Hon’ble Apex Court following the earlier judgment in Union of India v. P.K. Roy, AIR 1968 SC 850 held that the salary of the post alone may not be a determining factor, the other three criteria should also be fulfilled.” Punjab SEB v. Thana Singh, (2019) 4 SCC 113.
The Hon’ble Supreme Court in Novartis India Ltd. v. State of West Bengal, reported in (2009) 3 SCC 124, has held that merely because the dismissal from service has been held to be illegal would not result in automatic payment of back wages and the conduct of the concerned workman would also have to be examined. It was held as under:
“There can, however, be no doubt whatsoever that there has been a shift in the approach of the Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premises that the burden to show that the workman was gainfully employed during interregnum period was on the employer. The burden of proof that he remained unemployed would be on the workman keeping in view the provisions contained in Section 106 of the Evidence Act, 1872. The Hon’ble Court in the matter of grant of back wages has laid down certain guidelines stating that therefor several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 14 and 16 of the Constitution of India in cases of public employment etc.
It is also trite that for the purpose of grant of back wages, conduct of the concerned workman also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right. M/s Rathi Udyog Ltd. v. Presiding Officer, (2019) 2 UPLBEC 1093.