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
Tag Archives: Recruitment
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.
The expression “honourable acquitta” was considered by the Hon’ble Supreme Court in Deputy Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598. In that case the Hon’ble Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 IPC and Section 4 of the Eve Teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of the Hon’ble Supreme Court in RBI v. Bhopal Singh Panchal, (1994) 1 SCC 541, wherein in somewhat similar fact situation, the Hon’ble Court upheld a bank’s action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal. It was further held that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings. It was observed that the expressions “honourable acquittal”, “acquitted of blame” and “fully exonerated” are unknown to the Criminal Procedure Code or the Indian Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression “honourably acquitted”. The Hon’ble Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges leveled against the accused, it can possibly be said that the accused was honorably accused.” State of Madhya Pradesh v. Abhijit Singh Pawar, 2018 (4) ESC 782.
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.
Law is settled that exercise of discretion by the selection committee, in the matter of recruitment, is not required to be interfered with by the Courts, unless it is found contrary to the rules or is otherwise arbitrary or suffers from malafide. The Hon’ble Apex Court in Union Public Service Commission v. M. Sathiya Priya, (2018) 15 SCC 796, has observed as under:
“This Court has repeatedly observed and concluded that the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The Courts cannot sit as an appellate authority or an umpire to examine the recommendations of the Selection Committee like a Court of Appeal. This discretion has been given to the Selection Committee only, and the Courts rarely sits as a Court of Appeal to examine the selection of a candidate; nor is it the business of the Court to examine each candidate and record its opinion. Since the Selection Committee constituted by the UPSC is manned by experts in the field, we have to trust their assessment unless it is actuated with malice or bristles with mala fides or arbitrariness.” Lokendra Kumar Tiwari v. Union of India, 2019 (2) ESC 712.
In English parlance, the word “suitable” is assigned the meaning as “appropriate, fitted for the purpose or acceptable”. Concise Oxford Dictionary defines the word “suitable” as “well fitted for the purpose; appropriate”. This ordinary meaning is to be given effect to as a general guide, unless this expression is given special meaning in a statute or rule in administrative instructions. In R. (Quintavalle) v. Human Fertilisation and Embryology Authority, (2005) 2 AC 561 : (2005) 2 WLR 1061 : 2005 UKHL 28, the House of Lords remarked that “the word “suitability” is an empty vessel which is filled with meaning by context and background”.
In service jurisprudence, where the word “suitable” is normally examined from the point of view as to whether a particular person is suitable to hold a particular post, it is construed as “fit” to hold that post. It would mean that the job profile and job requirement of a particular post would be seen and then, going by the calibre, competence, attributes, skill and experience of the candidate, it would be ascertained as to whether such a person would be able to discharge the duties of the post i.e. whether he is suited to carry out the functions of the post, to the satisfaction of his employer.
The prefix “inter se” has also to be given some meaning as it cannot be rendered otiose. Therefore, whereas while assessing “suitability”, it has to be seen that a particular officer is not unfit for the post, when it comes to “inter se suitability”, it has reference to assessing the suitability of all eligible officers and thereafter finding who is more suitable to occupy such a post. Union of India v. Manomoy Ganguly, (2018) 9 SCC 65.
The expression ‘year of recruitment’ is used in several legislative enactments in the area of service jurisprudence and has been the subject of judicial precedent. In Harish Chandra Ram v. Mukh Ram Dubey, 1984 Supp (2) SCC 490, it was held that as and when recruitment takes place, the cases of all the candidates including the reserved candidates must be considered according to rules which would arise only when the recruitment takes place. In that context the court observed as under:
“So, as and when recruitment takes place the cases of all the candidates including reserved candidates must be considered according to rules which would arise only when recruitment takes place. Take for instance an hypothetical case. A and B are eligible for consideration and were considered in 1980 for two vacancies and B was found suitable and was appointed to one vacancy in 1982. One more vacancy arose in 1983. In the year 1983, A, C and D were considered. A and D were promoted in 1984. The recruitment years are 1982 and 1984, and not 1980 when one vacancy existed or 1983 when two vacancies existed. So each year is not the year of recruitment. As and when recruitment takes place in a particular year, it would be the year of recruitment.
It is thus clear that the recruitment year is the year in which the recruitment takes place, but not each three successive years in which the vacancy exists. Raeesul Hasan v. State of U.P., (2015) 2 UPLBEC 1441 (FB).