C H A P T E R I

RECRUITMENT*

Recruitment to various services and posts under the union and the states is one of the very important matters relating to the services under the state. The object of recruitment is to appoint persons capable of satisfactorily discharging the duties and responsibilities of the posts to which they are appointed. The important aspects relating to recruitment are (i) the prescription of qualification, (ii) the determination of sources of recruitment i.e. whether by direct recruitment and promotion, (iii) the method or procedure for selection i.e. whether by interview, viva voce or by competitive examination or by combination of some or all of the above test in the case of direct recruitment as also the authority competent to make the selection, i.e. whether the public service commission or by a recruitment committee constituted for the purpose or by the appointing authority itself, or in the case of promotion whether the case of persons should be considered by the appointing authority by itself or with the assistance of screening committee or a departmental promotion committee. It is for the state to regulate these matters either by making a law and by subordinate legislation, or by rules framed under proviso to article 309 and in the absence of both by executive orders of instructions.'

The state is free to regulate these matters.according to its own requirements only subject to the provisions of the fundamental rights and specific provisions contained in the Constitution as dealt with in the preceding parts of this book.

Qualification

Qualification for recruitment: No person without prescribed qualification can be appointed. A person to be appointed to a civil post under the state must possess the qualification prescribed under the rules. Where the qualification prescribed for a particular post is a specialized degree or diploma in a particular subject, a person possessing a general degree in which he has studied the special subject, as one of the subjects cannot be considered as a person possessing the prescribed qualification. No person can be appointed to a post under the state unless he possesses the prescribed qualification.2 The employer

* Revised by Versha Vahini, Assistant Research Professor, ILL 1 B. N. Nagarajan v. State of Mysore, AIR 1966 SC 1942; S. G. Jaisinghani v. Union of

India, AIR 1967 SC 1427; State ofU. P. v. Baburam Upadhyaya, AIR 1961 SC 751. 2 Union of India v. Dr. (Mrs.) S. B. Kohli. AIR 1973 SC 811.

448 Services under the Stale

may prescribe qualification both for direct recruitment as well as for promotions.3 In Technical Employees*, the railway board prescribed higher qualification for promotions. The person not possessing prescribed higher qualification assailed the validity of this order. The court relying on SB KohlP held that it is not arbitrary and irrational to prescribe higher qualification for promotions as for maintaining efficiency of service the higher qualification is required for the discharge of the duties in the higher positions.

Equivalent qualification must be notified: Similarly, where the rules prescribe a specified qualification or equivalent qualifications, as the minimum qualification for recruitment unless the equivalent qualification is declared and incorporated in the advertisement no person who does not possess the prescribed minimum qualification is eligible for recruitment. It is not open for recruiting authority to consider a qualification as equivalent to the specifically prescribed qualification and to appoint such person on the ground that the qualification possessed by him is equivalent to the prescribed qualification.6

Unless the rules prescribe that an equivalent qualification is also an alternative minimum qualification, even the equivalence declared by the government can have no effect. A person not possessing the qualification prescribed in the rules cannot claim to be eligible on the ground that he possesses the equivalent qualification.7 However, when equivalence is declared by competent authority, candidate possessing equivalent qualification is eligible. The decision of the government about the equivalence of qualification can be struck down only when it is shown to be based on extraneous or irrelevant consideration or actuated by mala fides or irrational or perverse or manifestly wrong.8 As regards equivalence of a qualification to the qualification prescribed for recruitment to a post, it is sufficient if the statutory body specially constituted to ensure educational standards in the specified faculty make the declaration of equivalence. Separate recognition by the universities is unnecessary.9

Qualification not prescribed by rules cannot be insisted upon: When according to the rules of recruitment, the qualification prescribed for recruitment in the cadre of munsiffh that a person should be a graduate in law, all that is required of a person is that he should be a holder of a degree in law. The person holding a degree of bachelor in general law falls within the

3 Also Sec T. R. Kothandaraman v. T. N. Water Supply & Drainage Board, (1994) 6 SCC 282.

4 Technical Employees Assn. of Railway v. Ministry of Railways, (2000) 9 SCC 412. 5 Supra note 2. 6 B. Nagaraj v. State of Mysore, W. P. No. 1509/1971 D 29-3-1973. 7 Suryanarayana Upadhyaya v. State of Karnataka, 1982 (1) Kar. L.I 41. 8 MohdShujalAliv. Union of India, AIR 1974 SC 1631. 9 Asawa B. L. v. State ofRajasthan. SLR 1982 (1) SC 677.

Recruitment 449

description of the word "graduate in law' and is eligible to compete for selection for recruitment to the post of munsiff The fact that a person holding the degree of bachelor of general law is not entitled to be enrolled as an advocate is no ground for the public service commission to refuse to entertain his application so long as the rules do not indicate that degree in law prescribed is the one which is the qualification required to be enrolled as an advocate.10 In another case, the Supreme Court held that where a person did not possess the prescribed qualification on the date of advertisement/appointment, his appointment cannot be validated with amendment in the rules subsequently."

Eligibility of high second class: When the conditions of eligibility prescribed is 'high' second class in order to find out whether a candidate is eligible, a line has to be drawn at mid point between the marks required for securing pass class and the marks required for securing first class. Any candidate who has secured above that mark should be considered as having high second class and those who have secured marks below that should be regarded as having secured low second class. Such mandatory condition of eligibility cannot be disregarded by the selecting authority.12

Experience as qualification: Experience is very often prescribed as a mandatory requirement by the recruitment rules. Where it is so provided, the candidate must have the experience of the nature specified and a better educational qualification will not substitute the requirement of experience.1' Also, when accordingto the rules, experience for specified period in a particular trade is prescribed as a condition for eligibility in addition to the degree qualification in the subject concerned without expressly stating that the experience refers to postgraduate work, the experience in the concerned trade acquired after securing diploma would constitute the prescribed experience.14

'Leaving' the job a disqualification - meaning: When a recruitment rule for a specified higher post disqualifies civil servants who leave the specified category of a lower post without completing the period for which they were appointed, it does not mean that those who are continuing in the lower post are ineligible for applying for recruitment to the higher post before the expiry of the period for which they were appointed to the lower post, on the ground that if they are so appointed they would have to leave the job. In the context, the rule means that those who had, in breach of the term of appointment, left

10 G Aswalhaiah v. Mysore Public Service Commission, 1972 (2) Mys LJ 249; /V. Rajashekarappa v. State of Mysore. 1967 (2) Mys LJ. 523.

11 Upen Chandra Gogoi v. Slate of Assam, AIR 1998 SC 1289. 12 Dr. J. P. Kulshrestha v. Chancellor. Allahabad University. AIR 1980 SC 2141. 13 Bhagirathdan v State ofRajasthan. AIR 1992 SC 1949. 14 S. Λ. Ramakrishna Ready v. KPSC. ILR 1982 (1) Kar SNRD 13. Also sec P K.

Ramachandra v. Union of India. 1983 (3) SLR 495; Indian Airlines Limited v. S. Gopalakrishnan. (2001) 2 SCC 362.

450 Services under the State

the service are disqualified to apply for the higher post. Therefore, a person continuing in the lower post is eligible to apply to the higher post even though he has not completed the period for which he was appointed to the lower post.15

Age qualification - service rendered under contract counts for enhancement of age limit: The rules normally provide for minimum and maximum age for appointment. The person below 18 years cannot be appointed.I6 In the absence of cut off date for determining eligibility qualification pertaining to age, it has to be fixed at the time of issuing the advertisement.17 Prescription of age limit and extent of relaxation, if any, to be given for a particular post are matters of government policy.18 In Lokmatha]9 the Kerala High Court observed that where according to the rules, service rendered by a person in a temporary capacity under the government counts for enhancing the maximum age limit fixed for regular recruitment, the fact that appointment of a candidate concerned was on contract basis is no ground to deny the service for the purpose of enhancing the maximum age limit for recruitment. But in Girish Jayantilal,20

the Supreme Court did not give relief of age relaxation meant for government employees, to the person employed on contract basis in the government. The court held that a temporary employee cannot be equated with permanent employees and so he cannot take benefit of this provision.

Power of the higher authority to select: When a person possessing the qualification prescribed for a post is selected by a selection committee but it was disapproved by the approving authority the disapproval by itself could not be construed as disqualification for the appointment. If the rules confer power on a higher authority to approve the appointment, it can approve the appointment if the person concerned possesses the prescribed qualification.21

Selection - the date of eligibility: A candidate for selection and appointment must possess the qualification as on the last date fixed for receipt of application. Acquisition of qualification by a candidate subsequently does not render him eligible. If such person is selected, the selection is illegal22 and improper.23

15 Rasesh C v. State of Gujarat. SLR 1978 (I) SC 264. 16 Mini Bagc/u v. Gobinda Chandra Pal, 1992 (1) SLR 476. 17 Jasbir Rani v. State of Punjab, AIR 2002 SC 60. 18 Union of India v. Shivbachan Rail, (2001) 9 SCC 356. 19 G K Lokmatha v. Director of Technical Education. If R 1977 (2) Kcr 1355. 20 Union Public Service Commission v. Girish Jayantilal Vaghela, (2006) 2 SCC 482. 21 A. A . Gallon v. Director of Education. MR 1983 SC 1143: SLR 1983 (1) SC 785. 22 Anurag Srivaslava v. State of Haryana. SLR 1983 (1) P & H 131. Also see State of

llaryana v. Anurag Srivastav, (1998) 8 SCC 399; U P Public Service Commission v. At pana, (1994) 2 SCC 723; Rama Shankar Shukla v. The Uttar Pradesh Secondary Education Services Commissions and Others, 1994 (I) LSC 235 (All); M if Nair v. Union of India, (1993) 2 SCC 429.

23 M A Murthy v. State ofKarnataka, AIR 2003 SC 3821.

Recruitment 451

Subsequent change of qualification - no ground for invalidating an earlier appointment: A person is entitled to be appointed if he possesses the qualification prescribed in the rules of recruitment at the time when the recruitment takes place. When a person who is eligible for recruitment under the rules in force is recruited to the service under the state, his appointment cannot be invalidated on the basis of change in the new recruitment rules.24 His eligibility would be tested on the basis of the qualification as they stood prior to the change.25

Subsequent derecognition ~ no effect: The qualification of a person for being recruited is with reference to the date on which he is selected and appointed. Therefore, when the qualification prescribed for recruitment was a diploma in the concerned subject and the qualification possessed by an appointee had been recognised as equivalent to the diploma by the competent authority, termination of service on the ground that the said qualification was subsequently derecognised is illegal.26

Relaxation of qualification: The recruitment in deviation of the published qualifications amounts to arbitrary exercise of power hit by articles 14 and 16 of the Constitution.27 Usually, rules regulating recruitment empower the designated authority to relax the qualification prescribed for recruitment to the post. Such relaxation can be made only in public interest and having due regard to the special qualifications, experience or competence of a particular individual. A general relaxation of the qualification invoking such power is wholly without authority of law.28 Also no relaxation can be made where persons possessing qualification as advertised are available and have submitted their applications29 or where no relaxation clause is mentioned in the advertisement.30 Relaxation, however, does not mean doing away with the criteria altogether.3'

Sources of recruitment

Effect of prescribing maximum percentage for one source of recruitment: When the rules require recruitment to a particular cadre in a prescribed percentage by promotion and the rest by direct recruitment, it only fixes the maximum percentage for promotion leaving it to the authority concerned to adopt any percentage below that figure. Persons eligible for promotion cannot

24 J J. Murlidhar\. State ofAP, SLR 1971 (1)AP 523. 25 Gopal Krushna Rath v. M. A. A. Baig, (dead) by LRS, AIR 1999 SC 2093. 26 Miss Rashmi v. State of Punjab, SLR 1983 (1) P & 31. 27 See Shri Kuldip Chand v. Union of India. 1970 SLR 406 (Del) 28 IS. Goelv. State ofHaryana, SLR 1983 (1) P& H 763. 29 Swaran Lata v. Union of India. (1979) 3 SCC 165. 30 Virendra Nath Gupta v. Delhi Administration, AIR 1990 SC 1148; Shianda Hasan v.

State of UP. AIR 1990 SC 1381. 31 A'. Shekar v. Indiramma, AIR 2002 SC 1230.

452 Services under the State

claim in such circumstances that the particular percentage of post should be filled up by promotion.32

Obedience to quota rule mandatory: If quota is stipulated according to the rules, between direct recruitment and promotion, the appointing authority cannot appoint persons from one source of recruitment as against the vacancies reserved for another source. Appointments made in contravention of the quota would be illegal.33 If recruitment rules provide that the vacancies required to be filled up by promotion can be filled up by direct recruitment if there are no eligible persons, the appointing authority has to consider the cases of all persons eligible lor promotion under the rules in the first instance, and if only there are no persons who are suitable for promotion can it proceed to fill up the posts required to be filled up by promotion, by direct recruitment.34 Those eligible for promotion according to the quota prescribed in recruitment rules are entitled to seek a mandamus to fill up the posts reserved for promotion in conformity with the rules.35

Direct recruitment vacancies can be filled up by promotion only temporarily: The rules may provide for permanently filling up vacancies reserved for promotion, in the absence of persons suitable for promotion. But the direct recruitment vacancies could be filled up by promotion only temporarily pending direct recruitment. The persons so promoted do not acquire any right for continuance or seniority and they must make way for direct recruits whenever the\ are recruited.36

The quota rule cannot be violated even in making temporary appointments: Similarly, where according to the recruitment rules certain specified quota is reserved for promotion, it is not open for the appointing authority to appoint even temporarily by way of direct recruitment as against posts reserved for promotion.17

The quota rule has no retrospective effect: Appointments made by promotion earlier to the date of the recruitment rules, prescribing quota of promotion and direct recruitment, cannot be taken into account for showing compliance with the quota.1x

32 Stale ofAndhra Pradesh \. Venkalappayya. AIR 1961 SC 779: 1961 (3) SCR 45. 33 Jaisinglwm v. ( man of India. AIR 1967 SC 1427: Mrmal/eel Kaur v. Union of India.

SLR 1972 P& II 809. 34 Mysore State Civil Services (General) Recruitment Rules. 1957-rule 17. 35 // Raju v Stale of Mysore. W. P. No. 534/71 D 20-7-72 (Mys); T. R. Doulat v. State of

Mysore. W. P. No 7275/69 D 20-10-72 (Mys): yV. Laxmaiah v. Union of India. SLR 1971 Del. 532; I'admanabhan v. State of Kerala. SLR 1982 (2) Ker 635.

36 i: 11 Badami v. Slate of Mysore. W. P. No. 193/72 D 15-12-1972 (Mys). 37 R B Paul v. State of Mysore. 1965 Mys. LJ SN 79-80. 38 //. Raju v. Stale oj Mysore. W. P. No. 534/71 D 20-7-72 (Mys); Samarth Ramdas v.

Stale of Mysore. W. P. No. 909/71 D 21-3-74 (Mys).

Recruitment 453

Difference between rule of rotation and rule of promotion: The recruitment rules in respect of any cadre of civil service may specify the proportion or percentage of the posts required to be filled up by direct recruitment and by promotion. It cannot be said that the rules provide that appointment by direct recruitment and promotion should be made by way of rotation. For instance, if the rules prescribe that recruitment to a particular cadre should be made to the extent of 66 per cent by direct recruitment and 33 per cent by promotion. it is not necessary that direct recruitment and promotion should be made by way of rotation in the ratio of 2:1. All that such recruitment rules require is that at any given point of time, the quota rule should not be violated. There is no prohibition for the appointing authority to fill up the direct recruitment vacancies or promotional vacancies available, as the case may be on any date. It is open to the authorities to fill up promotional quota first and thereafter to fill up direct recruitment quota or vice versa.39

Recruitment by rotation: But where the rules instead of fixing quota by way of proportions as between direct recruitment and promotion clearly provide that a specified vacancy or vacancies has got to be filled up by promotion or by direct recruitment the appointment by direct recruitment and promotion must be made in accordance with the rotation of vacancies.40

Vacancies which should be taken to decide the quota: In calculating direct recruitment and promotional quota of vacancies in the absence of specific provisions in the rules, all vacancies which are not stop gap or otherwise adventurous, must be taken into account. When the cadre consists of permanent as well as temporary posts, vacancies are likely to arise both in permanent posts and in temporary posts. Therefore, there is no warrant for the conclusion that vacancies referred to in the quota rules must be vacancies in the permanent posts.41 But when the rules provide for direct recruitment against permanent vacancies, only such vacancies should be taken as the basis. Therefore, where provisions of recruitment rules, read with probation rules, indicate that direct recruitment is required to be made only against permanent vacancies, the quota for purposes of direct recruitment as against promotion must be calculated only on the basis of the permanent vacancies arising in the cadre concerned and adjustment of seniority and confirmation as between direct recruits and promoteees should be made accordingly. If the rules expressly or impliedly indicate that vacancies arising each year should be taken as the basis, the quota of direct recruits and promotees should be adjusted on that basis.42

39 M. Devara Kondappa v. Commissioner for Commercial Taxes. W. P. No. 227/1963 I) 9-4-65 (Mys); W. P. No. 193/1972 and connected W. Ps. V. B. Badami v. Slate of Mysore, D 15-12-1972.

40 D. P. Hiremath v. State of Mysore, 1971 (1) Mys IJ 216. 41 B.S. Gupta v. Union of India, AIR 1972 SC 2627. 42 V. B. Badami, supra note 39.

454 Services under the State

Selections and appointments

Application for recruitment: rejection of application for selection on irrelevant ground-illegal: Where the advertisement issued by the public service commission entitles a public servant to apply if he was below 35 years of age, a subsequent amendment requiring, inter alia, that a government servant should produce a service certificate to claim the age limit is no ground for rejecting the application of a person submitted in response to the earlier advertisement which did not so require.43

Where in pursuance of advertisement issued by the public service commission, the candidate submitted his second-class degree certificate but no mark sheet, it was illegal for the public service commission not to have called him for interview on the ground of non-production of mark sheet, especially since the candidates who had secured less than fifty per cent were called for interview, as second class degree certificate indicates that the candidate has secured at least fifty per cent marks.44

When a recruiting authority requires a certificate from the principal of the college which the candidate has studied concerning a specified subject in the degree class, the production of a certificate from the head of the university department cannot be rejected on the ground that certificate from the principal specified in the advertisement had not been produced. In such circumstances what the recruiting authority is required to consider is whether the applicant possesses the requisite qualification. One way of establishing this is by a certificate from the principal of the college. But a certificate issued by the head of the department is equivalent and the rejection of the application in spite of production of such certificate by the recruiting authority is illegal.45 However rejection of an application not submitted in the prescribed form is valid.46

Amendment of rules after advertisement: (a) In a case where after holding the viva voce examination the rules are amended under which selection to one of the categories of posts advertised is not required to be made by the public service commission, it is bound to act in accordance with the amended rules.47

So long as no selection had been made under the unamended rules and all that had been done was to conduct the viva voce examination, no candidate acquires any right and consequently cannot seek a writ to the public service commission to make selection ignoring the amendment.48

43 /■/. M. R. Gowda v. State of Mysore, 1962 Mys LJ Suppl. 124. 44 Rama Ready v. Mysore Public Service Commission, 1969 (2 ) Mys LJ 66. 45 Vasanthakumar v. Mysore Public Service Commission, 1973 (2) Mys LJ SN 59. 46 Rangaswamy v. Kerala PSC, SLR 1982 (2) Ker 78 . 47 See State ofMP v. Raghuvir Singh Yadav. (1996) 6 SCC 151. 48 Krishna Rai v. State of Mysore, 1963 Mys LJ Suppl 261.

Recruitment 455

(b) Similarly, when the rule in pursuance of which applications were called for was declared invalid and thereafter the rule was amended the only way of proceeding with recruitment is by calling for fresh applications.

If, however, a list of selected candidates had been finalized before the issue of amendment, the list cannot be affected by such amendment. Neither the government nor the selecting authority can re-do the list applying the amendment.49

Normally the rule is amended prospectively but the court in Dhan Singh50

held that the state government can amend the rule retrospectively. However, the Supreme Court in K. Narayana51 struck down the amendment of rule retrospectively on the ground that the same will disturb the system, which has been in operation for the last 60 years.

(c) Persons who had filed applications earlier under a rule, which was declared invalid, acquire no right to say that only applications filed earlier should be considered. Fresh steps for recruitment under the amended rule have to take place.52

Selections - validity of selection

Selection made by a recruitment committee not properly constituted is invalid: A selection committee may be considered as improperly constituted for various reasons such as absence of quorum, absence of an expert where mandatory, presence of a member who has some personal interest in the matter of selection, presence of a member otherwise disqualified, etc. The source of power of a committee to make recruitment is the rules. If there is no strict compliance with the rules, then the exercise of power by the committee stands vitiated. Where the rules provided that a recruitment committee should include an officer nominated by the state government, selection made without the participation of the nominated officer is illegal and invalid. The rule, which states that such other officer as government may by order nominate to be the fourth member, it is mandatory as the "purpose of such a rule being to make available a specialist to the committee. The selection made by a committee without such a specifically nominated member is illegal and invalid.53 Presence of an interested member would render the constitution of the committee invalid on the ground of biasness.54 But every kind of bias is not taken to vitiate an

49 Narasimhaiah v. State of Karnataka, 1981 (2) Kar U 554. 50 Dhan Singh v. State ofHaryana, AIR 1991 SC 1047; P. MahendranM. State of Karnataka.

(1990) 1 SCC 411: N. T. Bevin Katti v. Karnataka Public Service Commission. AIR 1990 SC 1233; Maharashtra State Road Transport Corporation v. Rajendra Bhimrao Mandve, AIR 2002 SC 224.

51 K Narayanan v. State of Karnataka, 1994 Supp (1) SCC 44. 52 State of A. P. v. Ramakrishna Rao, AIR 1972 SC 2175. 53 Ibid. 54 A. K. Kraipak v. Union of India, AIR 1970 SC 150.

■156 Services under the State

act. For instance, members of a selection committee were not rendered disqualified on the ground that they had to interview candidates who were one time or the other their students.55 Similarly, a senior was not rendered disqualified from becoming a part of the DPC to consider his junior along with others for promotion, who was once appreciated for his work in the confidential report.56

Absence of a member of selection committee: Where according to the recruitment rules a specified number of members constituted the selection committee the absence of one of the members when the selection committee met and interviewed the candidates renders the selection invalid.57

Valid and invalid selection not severable: Where according to the rules, the deputy commissioner was the chairman of the selection committee, his absence for a few days when the interviews were made renders the entire selection invalid, as the valid portion is not severable from the invalid portion.·18

('ompetitive examinations: The Supreme Court recognized the importance of competitive examinations in the selection process.59 The recruitment examination should be conducted fairly as none of the candidates should have the advantage of copying or fore-knowledge of a question paper or otherwise.60

If the selection process is vitiated by reason of adoption of unfair means in the written examination on a mass scale, the authorities would be within their rights to refuse to make appointments on the basis of such a written examination and direct the candidates concerned to take a fresh written examination.61

Different marks may be fixed for different subjects having regard to the relative importance of the subjects and their degree of relevance.62 It is necessary for the authority to preserve the records pertaining to the competitive examinations carefully.61

Holding written test contrary to rules: In cases where the rules prescribe that selection should be made only on the basis of marks awarded at the interview, the procedure adopted by the appointing authority in holding a written

55 Dalpat Abasaheb Solunke v. BSMahajan. AIR 1990 SCC 434. Also sec Union of India v. Ashulosh Kumar Srivaslava. AIR 2001 SC 4004.

56 (," Λ Nayak v. Goa University. AIR 2002 SC 790. 57 Kenchaiah v. Stale Level Recruitment Committee. 1965 (2) Mys LJ 160: P. Sadashiv

Murthy v. Bangalore University. ILR 1982 (1) Kar SN 90. Also sec. State ofAP v. Dr. Mohan/it Sen, 1988 SCC(L&S)906.

58 .V. 1 Anantharamiah v. Recruitment Committee. 1969 Mys LJ SN 90; S. V. Krishna Murthy v. State of Mysore. 1972 (1) Mys LJ 629.

59 I ,iia Dhar v. Stale ofRajasthan AIR 1981 SC 1777. 60 IS. Raminjim v. State of A.P. AIR 2002 SC 2023. 61 Union of India v. Ananá Kumar Pandey. AIR 1995 SC 388. Also see B. Raminjini v.

Stale of A. P. AIR 2002 SC 2023. 62 Hanking Service Recruitment Board. Madras v. V. Ramalingam. AIR 1999 SC 2861. 63 Knshau Yadav v. State ofllaryana. 1992 Supp (2) SCC 118.

Recruitment 457

test and interview is illegal. In such a case a person aggrieved is entitled to seek a direction from the court, to prepare the select list only on the basis of marks awarded at the interview excluding the marks secured by the candidates in the written test.65

Common test: When candidates possessing higher as also lower academic qualifications are eligible for selection for appointment to any cadre, there is no necessity to hold separate tests to those possessing separate qualifications. Therefore, holding of a common test for candidates possessing master's degree qualification as also those possessing master's degree and doctoral degree for purpose of selection to the collegiate branch of the education department constitutes no infirmity, because the two categories cannot be put into two separate water tight compartments.66

Selection made without prescription of minimum marks for success: If recruitment rules require a competitive examination for selection to any category of post on the basis of success in the competitive examination prescription of minimum marks for success in the rules is mandatory. List of selected candidates prepared in the absence of such prescription under the rules is invalid.67

Prescription of minimum marks- when not necessary: Where a scheme of recruitment prescribed under the rules requires selection to be made on the basis of performance in a written test and interview, both should be taken together to judge the suitability of the candidate. The pubic service commission has to allow every candidate to participate in the interview and no candidate can be excluded from the inten/iew on the ground of his poor performance in the written test. In such a scheme, non-prescription of minimum marks for written test for purpose of exclusion of the failed candidates from the interview does not affect the selection. The necessity of prescription of minimum marks depends on the method of selection adopted and it cannot be said that in all types of selection without prescription of minimum of marks, there can be no selection of suitable candidates.68

Failure to add academic marks to interview marks: When the rules require that selection should be made on the basis of marks secured by the candidates at the qualifying academic examination prescribed for the post, selections made solely on the basis of interview marks, being in contravention of the rules cannot be sustained.69

64 Rama Dixit v. State of Mysore, 1972( 1) Mys LJ 404. 65 Manjunatha v. K. P. S. C, 1981(2) Kar LJ 520. 66 Rajasthan Public Service Commission v. Dr. Mrs. Damyanti Dadich, SLR 1983(2) Raj

362. 67 Chandrasekhara v. State of Mysore, 1962 Mys LJ 87. 68 Narayan Singh v. Mysore Public Service Commission. 1965(2) Mys LJ 404. 69 Fakirappa v. Committee for Selection of Village Accountants, 1973(2) Mys LJ SN 56.

458 Services under the State

Appointments required to be made on the basis of recommendation by an expert committee: Where according to the rules, appointment of honorary medical officer had to be made by the government on a consideration of the recommendation made by the director of medical service, it is not competent for the appointing authority to consider the case of any person who is not so recommended. What the rule requires is a recommendation, that is, a positive expression of opinion by the director of medical services that a particular person or persons is or/are fit to be appointed for the advertised post. Appointment of a person without such a recommendation is illegal.70

Interview and viva voce

Difference between interview and viva voce: An interview is not the same thing as a viva voce examination. The interview is a meeting of the interviewer and the interviewed face to face especially for the purpose of formal conference on some point, whereas a viva voce examination is an oral examination in a specified subject. Therefore, when the rules of recruitment prescribe that viva voce should be held, authority must make selection by holding viva voce and not the interview. However, the intimation describes the event as 'interview' and the records disclose that what was actually done was viva voce and not interview, an inexact and inappropriate reference to and 'interview' in the intimation is of no consequence.7'

Interview not an arbitrary test: It cannot be said that test of interview for purpose of selection to appointments under the state is arbitrary having no relationship to the object to be achieved. When the interview is entrusted to the public service commission, a constitutional authority, and it is required to find out the suitability of the candidates the commission is required to determine the quality which constitute suitability for the post in question and to prefer the most suitable amongst them (and in doing so, the commission has also the assistance of the department). Therefore, it cannot be said that the test of interview is an arbitrary test.72 The Supreme Court in Siraf3 observed that the interview is the best mode of assessing the suitability of the candidate for a particular position. However, the oral tests like interview and viva voce, are highly subjective in character and thus an allegation of arbitrariness could easily be made. It is susceptible to misuse.74

Selection by interview alone not arbitrary: Assessment of merit and suitability of candidates for appointment to public services only by interview

70 ,V. M. Prahhu v. State of Mysore. 1970(1) Mys LJ 524. 71 A'. N. Chandasekhara v. State of Mysore. 1962 Mys LJ 250. 72 Shivogi Gowda v. State of Mysore. 1965(2) Mys LJ 250; M. Λ. Jauhari v. State of

Jammu <H Kashmir. SLR 197 Í (1) J & K 489. """'" 73 K. If. Siraj v. High Court of Kerala, (2006) 6 SCC 395. 74 D. V. Bakshi v. Union of India, AIR 1993 SC 2374. Also see, Praveen Singh v. State of

Punjab, AIR200\ SC 152.

Recruitment 459

without a written test is not arbitrary. The observations of the Supreme Court in the case of Ajay Hasia15 that interview cannot be a sole test was made in the context of selection for admission to higher courses of study. These are not apposite to selection to public services. It is for the rule making authority to prescribe the method of selection - interview or written test or both. If the rules provide that selection should be made only by interview, it does not suffer from any constitutional infirmity.76

Interview should not be a farce: A recruitment committee is entrusted with the duty of assessing the suitability of candidates to a particular service or post; it is its duty to make a proper assessment at a properly conducted interview. While it is not possible in the abstract to lay down what should be the reasonable time for interview, it can hardly be said that the committee has discharged its duty, when it 'interviewed' 900 candidates in about 9 hours. The interviews so conducted provide no assessment of suitability. Selection made at such an interview is illegal.77

Assessment ofmarL· at interviews when several objective tests are prescribed to be assessed: When the scheme of interview requires assessment of the merit of candidates on the basis of prescribed objective tests by awarding marks, each prescribed test is of importance. In such a case, while the interviewers need not record the precise questions and answers when oral tests are adopted to appraise personality traits, it is sufficient if the examiner's findings are recorded on the appraisal sheet according to the personal qualifications itemised for measure. Therefore, when a committee authorised to interview the candidates and assess the merits on the basis of certain objective tests, allotted marks to the candidates at an interview in lump-sum and did not award marks for each of the objective tests prescribed, the interview was held illegal.78

If the rules do not require the assignment of marks separately, awarding of lump-sum marks does not invalidate the selection.79 Similarly in Madan ¿a/80 the court observed that where the rule merely provided for assessing

75 Ajay Hasia v. Khalid Mujib, AIR1981SC487. 76 Lila Dhar v. State ofRajasthan, AIR 1981 SC 1777; Hanumanthappa \.M.V. Mumswami,

ILR 1985 Jar. Also see Mehmood Alam Tariq v. State ofRajasthan AIR 1988 SC 1451: Kiran Gupta v. State of UP, (2000) 7 SCC 719.

77 K. M. Kumari Gowda v. Chairman, Selection Committee, 1973(1) Mys LJ SN 13. 78 Perikarupanv. State of Tamil Nadu, AIR 1971 SC 2303. The case involved an interview

held for selection to a medical college. However, the principles found in the American jurisprudence which has been approved in the decision is applicable to the interview or viva voce held for selection for recruitment to services under the state, whenever objective tests are required to be assessed at an interview or viva voce.

79 State ofKarnataka v. Farida, AIR 1976 SC 2482; Hanumamthappa v. Muniswamy, ILR 1985 Kar 365.

80 Madan Lai v State ofJ& K. AIR 1995 SC 1088.

460 Services under the State

the candidate's intelligence, general knowledge, personality, aptitude and suitability, assigning of separate marks under different heads was not necessary.

Object of viva voce- different types of viva voce: The Latin expression viva voce when used as a noun means an oral examination, which more often than not supplements a written examination and is believed to be an efficacious instrument for the estimation of suitability for a civil post. Sometimes, but not always, the object of the viva voce is the same as that for the written examination as it happens in the case of university examinations. The performance of the viva voce, however, is the discovery of abilities and deficiencies not displayed by the performance in the written examination. But the type or species of viva voce, which is normally preferred for assisting recruitment to the services, is a test devised for assessment of abilities, aptitudes, attainments and accomplishments of the candidate in spheres, which have relevance to suitability in the context of responsibilities and duties of the post, which he seeks.81 The purpose of such a viva voce is to evaluate those qualities. While the viva voce or the written examination in a specified subject measures the ability of the candidate to remember the volume of knowledge in a specified subject in which the examination is conducted and his capacity for the organization of that knowledge and its application in a suitable way, the viva voce of the pattern adopted for recruitment can have no subject as such, for its purpose is not to assess the scholarship or learning, but to make the evaluation of qualities which attributes suitability for appointment which he seeks. In the case of viva voce examination of this type, the examiners award marks on the subjective assessment of the suitability of the candidate. So long as it is not demonstrated that the examiners abuse the discretion conferred on them the selection cannot be set aside.82 Further, it is not for the court to investigate and evaluate the performance of the candidate at the viva voce. That is a sphere in which the subjective opinion of the examiners is conclusive.83

Interview cannot be equated with viva voce: But where rules provide that if the public service commission decides to make the selection only on the basis of interview and not a written examination or viva voce then the selection should be made according to the marks obtained in the examination prescribed as qualification for the recruitment. Where the commission conducted only an interview, the select list prepared by the commission excluding candidates who had secured higher marks in the prescribed examination is illegal. The stand taken by the PSC that they had held viva voce is not conclusive when the record disclosed that what was done was only an interview.84

81 Also sec K. H. Straj v. High Court of Kerala, (2006) 6 SCC 395. 82 Also see Surinder Kumar v. State of Punjab, 1987 (5) SLR 495. 83 K. Panduranga v. State of Mysore, 1968(1) Mys LJ 159; B. N. Nagarjun v. State of

Mysore, AIR 1966 SC 1944 at 1950. 84 Vivekananda v. Mysore Public Service Commission, W. P. No. 334/1966 (Mys).

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Viva voce matters not authorised by rules: While holding the viva voce the selecting body must confine to the matters specified in the rules. When according to the rules the object of viva voce was to test the candidate's general knowledge and grasp of principles of law, but while holding viva voce the PSC added two more items, namely, personality and suitability, the viva voce so conducted was in violation of the rules and could not, therefore, form the foundation of the list of successful candidates.83

Allocation of marks: There can be no hard and fast rule regarding the precise weight to be given to the viva voce test as against the written examination. It actually varies from service to service according to the requirement of the service, minimum qualification prescribed, age group, the body authorized to make recruitments etc.86 There is no universal rule of application with regard to percentage of marks for interview.87 It is also difficult to pronounce upon the correctness of allocation of marks between oral and written test unless exaggerated weight has been given with proven or obvious oblique motives. For instance, in Praveen Singh** the court observed that interview alone is not a satisfactory method of selection for the post of BDO or panchayat officer for which thousands of people apply. However, in Siraj,m

Vijay Syaf0 and Kir an Gupta,9] the court upheld the allocation of marks for interview.

Selection when preference for higher academic qualification is prescribed: (a) Where the rules of recruitment prescribe minimum qualification to any particular category of post and that persons possessing higher academic qualification should be preferred, it does not mean that irrespective of the performance in the interview or the examination a person with higher academic qualification should be preferred for inclusion in the select list. The rule only means that other things being equal (if the performance of a candidate possessing higher academic qualification and the persons possessing the minimum academic qualification is equal, a person possessing the higher academic qualification can claim preference but not in a case where the performance of a candidate possessing minimum academic qualification was better than the candidate who possessed the higher academic qualification.92

(b) When the rules of recruitment prescribe the minimum qualification for recruitment and also prescribe preferential qualification, and the rules regulating

85 K. N. Chandrasekhara v. State of Mysore, 1952 Mys 1J 87. 86 Ashok Kumar Yadav v. State ofllaryana, AIR 1987 SC 454. 87 Kiran Gupta v. State of UP. (2000) 7 SCC 719. 88 Praveen Singh v. State of Punjab. AIR 2001 SC 152. 89 K H. Siraj v. High Court of Kerala. (2006) 6 SCC 395. 90 Vijay Syal v. State of Punjab, AIR 2003 SC 4023. 91 Kiran Gupta v. State of UP. (2000) 7 SCC 719. 92 G K Ajappa v. State of Mysore. 1967 Mys LJ SN 60: 1869 L& I Cases 364. Also see.

State of UP v. Om Prakash. (2006) 6 SCC 474.

462 Services under the State

procedure for selection provide that candidates equal to four times the number of posts for which selections required to be made alone should be called for interview, the procedural rules cannot be used to defeat the provisions of the substantive rules prescribing the qualification for recruitment. It is obligatory for the selecting authority to give effect to the recruitment rules. In such circumstances both the rules should be given effect to by calling the candidates possessing the preferential qualification for interview even if it results in the exceeding of four times the number of posts for which selection is being made.93

The above decision was reversed by a division bench holding that no preference could be given to higher qualification while calling the candidates for interview but due weightage should be given to the higher qualification while awarding marks at the interview.94

Exclusion from consideration on valid grounds: When large number of candidates applies for selection at any recruitment, a process of elimination of candidates on valid grounds is not objectionable. On the other hand, it may be necessary to avoid the waste of public time of the selecting authority. Therefore, exclusion of candidates for recruitment to a cadre of judicial service, of persons who had been rejected at the time of earlier recruitment within a reasonably short period, is valid.93

Selection by considering confidential records: The selection of candidates for appointment to posts in the service of the state may be made by any method as may be found proper (e.g. selection by competitive examination, another by examination and viva voce). Similarly, selection may be made from among persons already in the service of the state by consideration of official records and a viva voce or merely on the basis of the official record. It is for the state to decide which method should be adopted in a given case. The prescription of past performance of an officer as one of the criteria for making selection is valid.96 Further, the court cannot sit in judgment over the nature of the questions asked and the marks awarded by the selecting authority.97

'Suitability' not a vague term: The word 'suitability' is correlated to the object of recruitment that a person has to be considered suitable for appointment for a particular service or post which itself furnishes the norm that has to be

93 Tukol v. State of Mysore, 1874( 1) Kar IJ 1336; Mallikarjuna v. Mysore I'SC, 1974( I) Kar IJ SN 24.

94 State of Mysore v. B. T. Tukol, ILR 1979(1) Kar 1225. However, the rule has been amended to call for interview all the candidates possessing preferential qualification subject to a maximum often times the number of vacancies advertised. K.P.S.C. v. N. C. Mugar, SLR 1981(1) Kar 469 at 487.

95 Jaivir Singh Yadav v. Registrar, High Court, SLR 1982( 1) All 752. 96 Parvej Kadir v. Union of India, AIR 1975 SC 446 at 453-54. 97 Jay id Rasool Bhat v. Union State ofJ & K, SLR 1984( 1) SC 543.

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borne in mind while making the selection. Therefore, when the work 'suitability' is used in the context of recruitment to a specified post, the work gives the necessary guidance for making selection.98

Computation of marks at the qualifying examination: When under the rules of recruitment, a particular educational qualification is prescribed and the rules require the selecting authority to arrange the names of candidates for interview according to merit, the selecting authority has to take into account the marks secured by the candidates at more than one examination if according to the rules governing the course, the success in all those examinations constitutes the basis for adjusting the merit for that qualification. In such a case, it would be illegal for the selecting authority to proceed to determine the merit only by taking the marks secured at the final examination." However, if a candidate fails to mention the additional qualification or place any record or certificate before the appropriate authority at the appropriate time, he may be precluded from contending any prejudice has been caused to him by not giving him additional marks.100

Belated option for selection to any cadre: The selection authority has no power to permit change of option at the request of the candidate in interview contrary to the option specified for more than one cadre or post.101

Allegation of bias against member of the selection committee: The basis for ascertaining whether the proceedings of a selection committee are vitiated on account of bias of any of its members is whether there is a reasonable ground for believing that the member was likely to be biased. There must be substantial possibility of bias animating the mind of the member of the aggrieved party. Therefore, if in a given case, a candidate appeared before the selection committee without raising any objection on the ground of bias against any of its members, it is not open to him later, after he is not selected, to raise an objection on the ground of bias.102

Appointment after selection

Inclusion in the select list - right for appointment according to ranking: When the rules of recruitment entrusted the public service commission to prepare the list of selected candidates in the order of merit and is forwarded to the appointing authority, the latter is bound to make appointment according to the list and cannot make appointment according to its own choice or omit to appoint any person who is assigned higher rank in the list and appoint a person

98 Parvej Kadir v. Union of India, AIR 1975 SC 446 at 453-54. 99 T. V. Sathya Prakash v. A'. P. S. C, SLR 1975(2) Kar 370: 1975( 1) Kar I.J 457.

100 Vijay Syal v. State of Punjab, AIR 2003 SC 4023. 101 Ramdev Ram v. State of Bihar, SLR 1979(3) Pat 64. 102 Dr. G. Sarana v. University ofLucknow, SLR 1976(2) SC 509.

464 Services under the State

having lower rank in the select list. If it is done, the action may be termed whimsical, not justified and against the principles of legitimate expectation and can be challenged on grounds of arbitrariness, mala-fide and extraneous considerations.104 The appointing authority can either accept or reject the select list prepared by the PSC but cannot accept the recommendation partially and appoint persons lower in rank in preference to persons ranked higher by the commission.105

No right for appointment: (a) The mere inclusion in the list of selected candidates does not create a right in a person included in the list to get himself appointed irrespective of the existence of vacancies.106 Further in spite of the availability of vacancies, it is open to the appointing authority to appoint out of the list of selected candidates such number of persons according to its requirement.I07 A person included in the list has no right to compel the appointing authority to appoint all the persons included in the Hst. However it has been held that the candidates enlisted do enjoy some right in terms of principles of legitimate expectation.'08 The apex court in Ishwar Singh Khatrim upheld the right of the candidates to be selected, whose names appear in the select list in excess of the number of vacancies. In this case, the staff selection board prepared a select list of 1492 candidates as against the 654 vacancies. The list was displayed on the notice board indicating that, "recruitment will be made ... till the last candidate". After filling 654 vacancies when no further appointment was made and a fresh advertisement was issued, the Central Administrative Tribunal directed to give appointment to the remaining candidates in the select list. In appeal before the Supreme Court, two questions were raised: (i) whether the select list after filling the vacancies survive? (ii) whether the remaining candidates whose names appear in the list have any legal right against anticipated vacancies? The apex court held that in normal circumstances, the claim of the remaining candidates in the select list cannot survive after filling up the notified

103 Vasant Bapu Rao Kidkarni v. State of Mysore, 1972 Mys IJ SN 139. //. Mukherjee (Dr.) v. Union of india, AIR 1994 SC 495. Stale of Mysore v. S. R. Jayaram, AIR 1968 SC 346: Nazeer llussain v. State of Mysore, 1964 Mys IJ SN 218; State of West Bengal v. Tapan Kumar. SLR 1982(1) Cal 584; D. Ramakka v. District Level Recruitment Committee. II. R 1981 (1) Kar 178; Sridharan Nair v. State of Kerala, SLR 1981 (2) Ker 817; Jatinder Kumar v. Slate of Punjab. AIR 1684 SC 1850.

104 R. S. Mittal v. Union of India. 1995 Supp (2) SCC 230: Vijay Kr. Singh v. Union of India. 1991 Supp(l) SCC 188.

105 Nazeer llussain v. State of Mysore, 1964 Mys IJ SN 218. Also see. Shankarasan Dash v. Union of India. AIR 1991 SC 1612.

106 Also see. Union of India v. Kali Dass Batish, Decided on Jan. 5, 2006; Shankarasan Dash, ibid.

107 Also see, State of UP v. Om Prakash. (2006) 6 SCC 474; Batiarani Gramlya Bank v. Pallab Kumar, (2004) 9 SCC 100; N. Mohanan v. State of Kerala, AIR 1997 SC 1896.

108 R. S. Mittal v. Union of India, 1995 Supp (2) SCC 230. 109 Union of India v. Ishwar Singh Khatri, 1992 Supp (3) SCC 84.

Recruitment 465

vacancies but in the present case the list included 838 names in excess of the vacancies anticipating further vacancies during the preparation of the select list. Such being the case, the selected candidates enjoy right to be selected. The same position was reiterated in Raj Kumar Sharma.'10

(b) Principles of legitimate expectation also prevent the appointing authorities not to keep the select list pending for long lest they shall be accountable for such unexplained delay.111 In the absence of any provision regarding validity of the select list, a reasonable period has to be taken into consideration."2 In normal circumstances, unless the recruitment rules prescribe any particular period during which a select list prepared will remain in force, it is always open to the authorities to call for fresh applications and make a fresh list of candidates for appointment without exhausting the list prepared earlier.113

However, the Supreme Court in Prasanna KumarU4 held that after expiry of the validity period, if the authority makes a single appointment from the candidates in the select list, then the claim of the other candidates in the select list cannot be denied as it would be discriminatory. It would amount to having kept the list alive.

The select list, once prepared, can not only be ignored but can also be cancelled on the grounds that the recruitment rule had not been followed115 or there had been shortcomings in preparation of the select list."6 In case of cancellation of select list no hearing is required to be given as a candidate has no right of appointment at this stage."7 In the absence of any arbitrariness, the enlisted candidates cannot enjoy any ground to challenge state action."8

Not only the entire list can be cancelled, even the name(s) of individual candidates can also be cancelled or removed. It was held in Vijeeshu9 that removal of name from the selection list because of a policy decision to prune down/ reduce posts, the action is neither arbitrary nor call for hearing as a principle of natural justice. Similarly, in Gurdeep Singh120 the court approved the setting aside of selection list and appointment of candidates in the mean time, based on the report of CBI on the ground of fraud, nepotism, favouritism

110 State ofU.P. v. Raj Kumar Sharma, (2006) 3 SCC 330. 111 Dalpat Abasaheb Solunke v. B.S Mahajan, AIR 1990 SC 434. 112 State of UP v. Rafiquddin, AIR 1988 SC 162. 113 Thimmi Gowda v. State of Mysore, 1970 Mys LJ SN 43; Anandraj v. KSRTC. 1983

(2) Kar LJ 78. 114 Prasanna Kr Nayak v. National Insurance Co., (1993) I LI J 611. 115 Bhainagar v. Union of India, 1995 Supp (2) SCC 230. 116 JaswantSingh v. State of Punjab, AIR 1991 SC 385. 117 Union Territory of Chandigarh v. Dilbagh Singh, (1993) 1 SCC 154. 118 Vijay Kr. Singh v. Union of India, 1991 Supp (1) SCC 188. 119 Union of India v. K. V. Vizeesh, AIR 1996 SC 3031. 120 Gurdeep Singh v. State ofj & K AIR 1993 SC 2638. The same view was taken in

Hanuman Prasadv. Union of India, (1996) 10 SCC 742.

466 Services under the State

and arbitrariness in the selection of tax inspectors. Similarly, selection procured through illegal means could not be sustained.121

Denial of appointment on grounds of medical unfitness: When a candidate has been selected to the post of clerk-cum-typist and the medical board found that the candidate was not medically unfit for any post provided he/she continues to take treatment and be under constant medical check up, the appointment cannot be refused on the ground of medical unfitness.122

Appointing authority has no power to reassess the suitability of selected candidate: When the law governing the selection and appointment to any post under the State provides for the constitution of a selection committee or board of appointment and the appointing authority is required to make appointments in accordance with the recommendations made by such committee or board, the appointing authority cannot make a reassessment of the suitability of the candidates for appointment and deny appointment to a selected candidate on the ground that in its view he is not suitable for appointment. The decision regarding suitability in such a case is exclusively within the power of the selecting authority. The appointing authority, however, has the power to decline to make appointment if it finds that the selected candidate does not possess the prescribed qualification or suffers from disqualification or that any mandatory procedure required to be followed in advertising the post or making the selection had not been followed.123

Cancellation of selection and appointment: The selecting authority has the power to cancel the selection and also to debar a candidate from further selection permanently or for a specified period, for misconduct like suppression of material information.124 Not only the select list but also the consequent appointment can be cancelled on bona fide grounds.125 In Ashok Dubeyue

the apex court upheld the action of cancellation of offer of appointment. In this case, the person was offered appointment subject to valid discharge certificate from the earlier organization but the same could not be furnished due to disciplinary proceedings in that organization.

A person's appointment can be challenged within a reasonable time period and the court/tribunal may refuse to entertain belated application.127 In cases

121 State of Bihar v. Sheo Prosad, 1995 SCC (L&S) 1244. 122 Smt. K. Indira v. State Bank of India, SLR 1983(2) ΛΡ 376. 123 Dr. A. V. Venkata Ratnam \. Chancellor, University of Mysore, ILR 1981(l)Kar630:

SLR 1981 (2) 486; S. Virupakshaiah v. Chancellor, Bangalore University, ILR 1981 (1) Kar 1068.

124 Kerala Public Service Commission v. M. M. Johnson, SLR 1979 (3) Ker 567. 125 Union 'territory of Chandigarh v. Dilbagh Singh, (1993) 1 SCC 154. 126 Central Provident Fund Commissioner v. Ashok Dubey, AIR 1994 SC 545. 127 Ashok Kr Sharma v. Chandra Sekhar, 1993 Supp (2) SCC 611. Also see. Rekha

Chaturvedi v. University ofRajasthan, 1993 Supp (3) 168 and J. Jose Dhanapaul v. S. Thomas, (1996) 3 SCC 587.

Recruitment 467

of cancellation of appointment/confirmation/promotion by the appointing authority, the person concerned should be given right to hearing which is the basic tenet of principles of natural justice.128 But where the appointment is obtained through fraudulent means'29 or appointment being made in an irregular manner of selection,130 it is not necessary to give the person concerned any right of hearing before cancellation of his appointment.

Automatic deletion of name on failure to join duty: If a candidate selected for appointment fails to join duty within the maximum time permitted by law. he loses his right for appointment. His name stands automatically deleted from the select list. No separate order for cancellation of appointment is therefore necessary. A candidate who lost his claim for appointment on account of his own conduct cannot have any legitimate grievance.131

Selected candidates can be deleted if found unsuitable: The mere inclusion in the list of selected candidates does not confer a right when the person so included is ineligible to get an appointment. It is competent for the appointing authority to find out whether the candidate so selected is suitable for appointment. The suitability includes the qualification prescribed for the post also. The appointing authority can exclude a person from being appointed if he is not found suitable.132

No right for change of departments: Where the rules require a list of candidates for each category to be prepared both having regard to the performance in the examination as well as the choice expressed by the candidates in a combined competitive examination for different State cadre services, a person who is included in one category according to his performance cannot claim to be appointed to another category just because a candidate who was included in another category did not accept the appointment.133

Appointment by transfer

While the normal method for appointment is direct recruitment or promotion, sometimes it becomes necessary either because of the service of a particular government servant in other department of state government or on account of abolition of posts or reorganization of department to appoint a person already in service to a post in some other department of the government.

128 Shridhar v. Nagar Palika, Jaunpur AIR 1990 SC 307. 129 Brij Mohan Singh v. Union of India. (2002) 9 SCC 453; Rita Misra v. Director,

Primary Education, Bihar, 1988 (3) SLR 130 (Pat). 130 Dayashankar Singh v. Union of India 1992 (6) SLR 297 (Bom); Union oj India v.

V.O. Chakradhar, (2002) 3 SCC 146. Also see Union of India v. Joseph P. Cherian, (2005) 8 SCC 180.

131 Deva Sunder v. Secretary, Sept. of Public Libraries, SLR 1981(2) Kar 79. 132 ('. M. Muninarayanappa v. State of Mysore, 1962 Mya LJ SN 140. 133 K. Pramod Kumar v. State of Mysore, 1971 (1) Mys LJ SN 42.

468 Services under the State

The state has the necessary power to do so. An appointment of a person already in government service to a different post or department is called 'appointment by transfer'. Subject to the condition prescribed in the rules, it is competent for the state to transfer government servant from one post to another.134 The transfer, however, could be only to an equivalent post,135 and as provided in the rules.136 However, recruitment by transfer can only be made "from any other service". It cannot be done where both the posts are under the same service.137

Effect of transfer. The employees transferred bring along with them the seniority and are entitled to hold substantively the permanent posts to which they are transferred. It will necessarily affect the chances of promotion of persons in the department to which such officers are transferred.138 But it is open for the state to impose a condition to the effect that officials will be absorbed in the specified department if only they agree to forego their earlier service for seniority. If any official refuses to accept such condition, he can claim to be transferred or absorbed in the department in which the State proposes to absorb him without that condition.'34

Failure to give option within time: When a new service is created and persons who are already in service are given option to join the new service before a specified date, a civil servant who fails to give his option before the specified date cannot claim to become a member of the new service.140

Other matters relating to recruitment

Re guiar ization impermissible: When the rules of recruitment prescribe the procedure for making selection and appointment to any category of posts, it is not open for the executive to regularize the services of an irregularly appointed candidate, for, the executive power cannot override the statutory rules.141 In a landmark judgment in Secy., State of Karnataka v. Umadevi,142

the Supreme Court came heavily on the high courts for making orders under

134 Nanjiidaiuh v. State of Mysore, 1962 Mys L.I Supp 323. 135 Malhotra v. State of Punjab, SLR 1975 (2) SC 259. 136 Subramanya Gupta v. State of Karnataka, ILR 1975 Kar 1195. 137 K. Rajaiah v. Slate ofAP, 1987 (4) SLR 556. 13 8 Paresh ('handra Nandi v. Controller of Stores, N. /·.' Rly., ΛΙR 1971 SC 3 59; Narnayan

S. Kayak v. State of Mysore. 1968 (2) Mys L.I 299: K. Shivappa v. State of Mysore. 1970(1) MysLJ 235.

139 ,V. C. Ramakrishnaiah v. State of Mysore, 1971 (1) Mys LJ 555. 140 Madhav Keshav Rao v. State oj'M. P., SLR 1980 (2) MP 266. 141 Nagarajan v. Stale of Karnataka, SLR. 1979(3) SC 116: Nanjundappa R. N. v. T.

Thimmaiah. AIR 1972 SC 1767. 141 Katyam Daya\ v. Union of India. 1980 (2) Kar LJ SN 10( SC). 141 Indrajit Singh v. Union of India. SLR 1975 (2) HP 839. 142 (2006) 4 SCC 1.

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article 226 for absorption, regularization of recruitment and permanent continuation. The court.cautioned against passing of order for absorption, regularization and permanent continuous service unless the recruitment itself was made regularly and in terms of constitutional scheme. The court accepted that a person may not have bargaining power and therefore may accept temporary or contractual positions in order to eke out livelihood but this is not a ground to jettison the constitutional scheme and perpetuate illegalities and make him permanent on the ground that he has worked temporarily or contractually for a long time. Similarly in R.S GargHl the court held that where rules provided for selection through PSC, the appointment made without complying with the rules is void ab initio and incapable of regularization.

Recruitment to a cadre created to satisfy a temporary need: There is no legal compulsion that simultaneous with the creation of posts the rules regulating recruitment should be framed or the posts so created must be governed by the recruitment rules, if any, already in force. It is competent for the state to create a post or posts/service to meet a temporary need outside the regular cadre and appointments could be made to such posts by the competent authority subject to articles 14 and 16 of the Constitution.144

Recruitment with retrospective effect: When recruitment to a service is regulated by rules, recruitment and appointment with retrospective effect cannot be made unless the statutory rules authorise the making of such an order. In the absence of such power, the giving of retrospective effect to appointment would be illegal.145

No substantive appointment against a temporary post: There can be no substantive appointment to a temporary post. Therefore, though an order purports to appoint a person substantively against a post, it cannot be regarded as a permanent appointment, if the post is temporary.146

No bar for direct recruitment to temporary posts: When temporary posts are created for specified period, there is no bar for direct recruitment to such posts. The rules of recruitment which prescribe the qualification and quota for recruitment apply both to temporary and permanent posts.147

143 R.S.Garg v. State of UP, (2006) 6 SCC 430. The complete legal position regarding regularization of appointment can be ascertained (rom the following cases: Employees' Union v. Mineral Exploration Corporation Lid., (2006) 6 SCC 310: K. Madalaimuthu v. State ofTN, (2006) 6 SCC 558; National Fertilizers Ltd. v. Somvir Singh. (2006) 5 SCC 493; Workmen v. Vhurkunda Colliery of Cental Coalfields Ltd.. (2006) 3 SCC 297; State of Bihar v. Project Uchcha Sikshak Sangh, (2006) 2 SCC 545; State ofW. B v. ΛΙραηα Roy. (2005) 8 SCC 296 etc.

144 Katyani Dayal v. Union of India, 1980 (2) Kar LJ SN. P. 10(SC). 145 lndrajit Singh v. Union of India. SI.R 1975 (2) HP 839. 146 State ofU P. v. Nand Kishore Tandon, AIR 1977 SC 1267. 147 Sawkar Y. H. v. Director of Agriculture, SLR 1979 (2) Kar 249.

470 Services under the State

Assurance given by executive order not to prevail over the rules: Though the state had given assurance to persons who join military service during national emergency that after their return to the civil service certain number of posts in the promotional cadres would be reserved in their favour, unless the recruitment rules are amended so as to make them in conformity with those executive orders, the person concerned cannot claim the benefit on the basis of executive orders. The principle of promissory estoppel does not prevail against the rule making power of the state. Therefore, no writ can be issued to the state to implement the assurance by amending the rules.148 This view was taken by a division bench of the Karnataka High Court reversing the decision of Venkataramiah J (as he then was). The correctness of the view taken by the division bench is doubtful. The principle of promissory estoppel could be enforced against the state, if not it would result in manifest injustice.149

Undoubtedly, the breach of solemn assurance given to those citizens at the time of their joining military service, during national emergency, after they return alive from war service, is nothing but grave injustice and a betrayal of the confidence reposed by the citizens in the government. It cannot also be said that the executive had no lawful authority to give such assurance. Therefore, in such a case the reasonable view is that the number of posts required to accommodate the ex-military personnel must be regarded as falling outside the purview of the recruitment rules and should be filled up according to the relevant executive orders on which the claim is based.

Absorption

Taking over of private institutions: On several occasions on account of the taking over of the establishments or institutions belonging to local or other authorities or even private organizations along with the members of the staff, the employees of such non-governmental bodies are absorbed in the government service.150

(b) For permanent absorption, a formal order of the absorbing body is necessary.151 Similarly, where employees of a sick government company are deployed in the government service pursuant to a scheme settled by the BIFR, it would amount to absorption of such employees and the scheme would be as good as statute and cannot be defeated by the state legislation.152

(c) Where a private educational institution is taken over by the state government subject to the condition that the services rendered by the members

148 State of Karnataka v. Smt. R Chikkamaglur, ILR 1980(1) Kar 401. 149 (a) M/s Motilat Padampat Sugar Mills Co. Ltd. V. State of 11 P., AIR 1279 SC 621.

(b) Ramachandran v. State of Mysore, 1975 (1) Kar L.I SN 16. 150 (a) A. G. Hasabnis v. State of Mysore, 1967 (1) Mys U 118.

(b) M. Krishna Murthy v. State of Mysore. W. P. No. 151/1261 D 7-8-61 (Mys). 151 Fertilizer Corporation of India Ltd. v. Union of India, AIR 1996 SC 2398. 152 V. S. R. Murthy v. Engineer-in-Chief, etc. 1998 (2) SI.R 88 (AP-FB).

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of the staff in such institution will be treated as public service, an officer who absorbed by that process in government service is entitled to count his previous service in the equivalent cadre for purposes of seniority. In such a case, it is not competent for the government to treat him as a fresh recruit in the

153 service.

(d) Similarly, where an enactment provides that servants of the erstwhile district boards should be absorbed in government service, the clear meaning of the work 'absorption' is continuation in service of an employee without interruption. The consequence emanating from such absorption is continuity in service without any break. The true position in such a case is that services under the erstwhile district board becomes united with the services under the government and such an absorption excludes the concept of termination of previous service and the commencement of service in the government. In such a case, it is not competent for the government to exclude the whole or part of the previous service for purpose of seniority in the state service.'5'*

(e) Similar is the effect where a private organization is taken over by a government order. The antecedent service has to be taken into account for consideration of seniority under the government. Such taking over excludes the concept of fresh appointment.155

Right to be absorbed in an equivalent post: When a statutory provision provides for absorption, the employee of erstwhile local authorities has the right to be absorbed in a similar or equivalent post.156 But in Anis ParvezXil

the court upheld the absorption in the higher scale because it was done by way of concession under a scheme of absorption passed pursuant to a direction issued by the Supreme Court. However, in Biplab Kumar,l58 the court refused appellant who was tax collector on contract basis, the relief of absorption in the service of dafadars and chowkidars.

It is also competent for the state to maintain such employees as a separate unit for seniority and promotion without absorbing them in the regular department of the state.IS9

153 M. Krishna Murthy\. State ofMysore, W. P. No. 15I/I26I D7-8-6I (Mys). Also see Federation of Directly Appointed Officers of Indian Railway v. Union of India, {1993) 3 SCC 364.

154 A.G. Hasabnis v. State of Mysore. 1967 (I) Mys IJ 118. 155 Khasi Khurshid Ahmed v. Union of India. 1969 (1) Mys IJ 415. 156 K.V. Ballurgi v. State of Mysore. 1974 (1) Kar LJ 168. 157 Anis Parvez v. Director General CSIR AIR 2002 SC 2368. 158 Biplab Kumar Das Mahapatra v. State of West Bengal, 2000 (4) SLR 563 (Cal). 159 State of Punjab v. Joginder ofHaryana, AIR 1963 SC 1982; R. L Wadhwa v. State oj

Haryana. AIR 1972 SC 1982.

472 Services under the State

Irregularly appointed person has no right: A person appointed in violation of the rules has no right to claim on a regular basis in view of his service and experience.160

Absorption in different unit: A workman of one unit cannot claim absorption in another unit as the different units of a construction company are independent units for the purpose of section 25-FFF of Industrial Disputes Act, 1947 and a single management or control is of no importance.'61

Absorption of deputationists: A deputationist has no enforceable right to absorption in deputed department, the employer always has a right to repatriate the deputationsit to the parent organization.162 That means consent of the parent authority as well as the authority under which deputation takes place is necessary.163

160 (". R Tamralli v. Stale of Mysore. 1974 (1) Kar IJ 408. 161 Indian Railway Construction Co. Ltd v. Lai Mohammad. 1998(3)ESC 1883 (All). 162 Mahesh Kumar K. Parmar v. SIG of Police. 2002 (4) ESC 16 (SC). Also see Mahesh

Chana Bhargava v. Union of India, (2001) 10 SCC 655; Kunal Nanda v. Union of India. AIR 2000 SC 2076; Ram Anurag Verma v. State of UP, 2002(1) ESC 179 (All).

163 Sughar Singh v. Secy. Mahaprabandhak, Farrukhabad Distt., 1996(3)SLR291 (All).