Tag Archives: service law

Recruitment, Advertisement, Selection and Appointment

“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

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Recruitment – No Discrimination Can Be Permitted

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

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Requirement of Public Employment – Is Transparency

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.

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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.

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Consideration of Name – Recommended by Departmental Promotion Committee

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.

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Appointment – Obtained by Fraud

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.

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Termination of – Part Time Employee

In B.T. Krishnamurthy v. Sri Basaveswara Education Society, 2013 (137) FLR 689 it was held as under:

    “The Tribunal completely misdirected itself in passing such an order of regularization and reinstatement in a case where the Respondent allegedly worked in the College as a part-time Lecturer without any appointment letter and without any selection process. Since the society never issued any letter of appointment, a letter of termination was also not served upon the Respondent.

    In the absence of any appointment letter issued in favour of the Respondent as he was temporary/part time lecturer in the college, there cannot be any legitimate expectation for his continuing in the service.” Zila Basic Shiksha Adhikari v. Seeta Ram, 2018 (159) FLR 952.

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“Ad Hoc Appointment and “Officiating Appointment” – Distinction Between

In P. Ramanatha Aiyar’s Adcanced Law Lexicon (4th Edition) the phrase “Ad hoc Appointment” is described as temporary appointment made without selection of the candidate by any of the methods of recruitment provided under the relevant service rules or any orders of the Government where no service rules exist and otherwise than on the recommendations of the Commission if the post is in its purview. The treatise goes on to state that ad hoc appointment is made as a stop gap arrangement to carry on the Governmental work before the regular selection is made. “Officiating appointment” has been described in the aforesaid treatise as an appointment, not made substantively, which is temporary until further arrangements are made for filling the post permanently. “Officiating Service” has been described therein as service rendered as a non-permanent holder. There is a common thread in both types of appointment which is that both appointments are temporary made to serve a purpose. The discernible difference between the two is that in a case of officiating appointment, ordinarily, a post exists from before whereas in a case of ad hoc appointment it is not necessary that a post may exist from before because an ad hoc appointment may be made by way of an arrangement  to serve a purpose/exigency that may have arisen. Dr. Madan Gopal Pandey v. State of U.P., 2018 (6) AWC 6264.

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Employee on Deputation – Has no Right to Claim Absorption

In U.P. Rajkiya Nirman Nigam v. P.K. Bhatnagar, (2007) 14 SCC 498, it was held that the mere fact that the employee has spent several years in service in the Department where he has been sent on deputation, will not alter the position from that of a deputationist to a regular employee. Of course, it is well settled that the employee who has been sent on deputation, has no right to claim absorption. Raja Singh v. State of U.P., (2019) 6 SCC 528.

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Appointment Made For a Fixed Term – Comes to an End on Expiry of Period

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.

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