Justice After 28 Years!

 

 

 

By Adv. R. S. Agrawal 

 

THROUGH the judgement of civil appeal in the case – Union of India v. Uzair Imran & Others, delivered on October 11, 2023, Justice Bela M. Trivedi and Justice Dipankar Datta, at the Supreme Court have declared that in the present case, the decision of the appellant undoubtedly hinged on its scarce knowledge of the nature of the third respondent (Ankur Gupta)’s education, evincing that his exclusion was not on the basis of a valid and proper reason and was decidedly arbitrary. Normally, it is not the function of the court to determine equivalence of two qualifications and /or to scrutinise a particular certificate and say, on the basis of its appreciation, that the holder thereof satisfies the eligibility criteria and thus , is qualified for appointment. It is entirely the prerogative of the employer, after applications are received from interested candidates or names of registered candidates are sponsored by the Employment Exchanges for public employment, to decide whether any such candidate intending to participate in the selection process is eligible in terms of the statutorily prescribed rules for appointment and also as to whether he ought to be allowed to enter the zone of consideration, that is to participate in the selection process. It is only when evidence of a sterling quality is produced before the Court which, without much argument or deep scrutiny, tilts the balance in favour of one party that the Court could decide either way based on acceptance of such evidence.

 

Notwithstanding this settled legal position, the stage when ineligibility is cited for not offering employment also assumes importance. It is indeed indisputable that none has any legal right to claim public employment. In terms of Article 16 of the Constitution, a candidate has only a right to be considered therefor. Once a candidate is declared ineligible to participate in the selection process at the threshold and if he still wishes to participate in the process perceiving that his candidature has been arbitrarily rejected, it is for him to work out his remedy in accordance with law. However, if the candidature has been not rejected at the threshold and the candidate is allowed to participate in the selection process and ultimately his name figures in the merit list – though such candidate has no indefeasible right to claim appointment – he does have a limited right of being accorded fair and non-discriminatory treatment Given the stages of process that the candidate has successfully crossed, he may not have a vested right of appointment but a reasonable expectation of being appointed, having regard to his position in the merit list could rise. The employer, if it is a State within the meaning of Article 12 of the Constitution would have no authority to act in an arbitrary manner and throw the candidate out from the range of appointment, as distinguished from the zone of consideration, without rhyme or reason.

 

The employer-State being bound by Article 14 of the Constitution the law places an obligation, nay, duty, on such an employer to provide some justification by way of reason. If plausible, justification is provided, the courts would be loath to question the justification, but the justification must be such, that it is rationale and justifiable, and not whimsical or capricious, warranting non-interference. In the facts of this case, the stage of declaration of ineligibility seems to the Court to turn the tide in favour of the Ankur Gupta –the respondent No. 3, who has been declared ineligible to participate in the selection process. As the factual narrative in this case reveals, the appellant considered the respondent-3 had considered the respondent-3 eligible, allowed him to take part in various tests in connection with the selection process, interviewed him, placed his name quite high in the merit list, and thereafter sent him for 15 days’ pre-induction training starting from March 15, 1996. It was after a week that the letter of March 22, 1996 was issued, which resulted in ouster of the third respondent, Ankur Gupta, from the range of appointment.

 

There is little doubt that the decision to treat the Ankur as ineligible was based on the certificate, however, there is no gain, saying that the certificate produced by the respondent-3, in support of his claim that he had qualified in the relevant examination and, thus, was eligible to be considered for appointment, did leave room for two views. It is settled law that unfettered discretion, unaccountable approach and arbitrariness in State action are antithesis to Article 14; and, particularly when two views could possibly emerge certificate of educational qualification placed by the third respondent, with both views not being wholly unworthy of acceptance, fairness in the administrative procedure demanded that the appellant ought to have given reason, howsoever brief, as to why, it considered the third respondent to have succeeded in relevant examination through “vocational stream”, thereby attracting ineligibility, without considering the effect of the remark, ‘Regular’ at the foot of the certificate. The contents of the letter of March 22, 1996, which sounded the death knell of the third respondent, is clearly suggestive of a general direction given to the addressee Post Master General; they were not called upon to scrutinise each certificate on its merits. As such there was no individual rejection, but a general rejection without applying one’s mind to the contents of the certificate. It was thus, highly improper for the appellant to reject the candidature of the third respondent outright in the absence of a proper appreciation of the certificate.

 

In the Supreme Court’s view the respondent-3 had been discriminated against and arbitrarily deprived of the fruit of selection. The SC has stated quite candidly that the appellant-Union of India is responsible for this case being prolonged in excess of two decades (28 years). It was utter carelessness on the [part of the appellant in not producing the Amendment Rules and the Gazette Notification before the Tribunal. In view of the age of the third respondent being 50 years now, the Supreme Court has issued several appropriate directions with a view to do complete justice under Article 142 of the Constitution. Accordingly, the Court directed that the third respondent be offered appointment as Postal and sorting Assistant (the post for which he was selected), initially, on probation, by the appellant. If there is no vacant post, a supernumerary post be created for him. After period of probation he should be confirmed in the said post. If his services are not found satisfactory, He would be entitled to avail legal remedy. Having not worked he would not get any arrears of pay or would not have any claim of seniority. In the event of being confirmed in service, the third respondent would be treated as appointed notionally from the date in the year 1995 when the last candidate was appointed to the post only for the purpose release of retirement benefits. For calculating retirement benefits, the basis would be last pay drawn by him, while in service. These directions are applicable only to the third respondent. The impugned order was passed by the Lucknow Bench of the Allahabad High Court on April 4, 2017 and order in review of December 10, 2021, affirming the order of the Central Administrative Tribunal on May 6, 1999.