Full Judgment Text
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PETITIONER:
KRISHAN CHANDER NAYAR
Vs.
RESPONDENT:
THE CHAIRMAN, CENTRAL TRACTORORGANISATION AND OTHERS
DATE OF JUDGMENT:
23/08/1961
BENCH:
SINHA, BHUVNESHWAR P.(CJ)
BENCH:
SINHA, BHUVNESHWAR P.(CJ)
DAS, S.K.
SARKAR, A.K.
GUPTA, K.C. DAS
AYYANGAR, N. RAJAGOPALA
CITATION:
1962 AIR 602 1962 SCR Supl. (3) 187
CITATOR INFO :
D 1977 SC 854 (15,16)
R 1985 SC 28 (17)
ACT:
State Employment-Arbitrary imposition of ban against such
employement-If violates fundamental right-Constitution of
India, Art. 16(1).
HEADNOTE:
Arbitrary imposition of a ban against a person’s entry ino
Government service amounts to an infringement of his right to equality o
f opportunity guaranteed by Art. 16(1)of the
Constitution.
That Article guarantees not merely the right to make an
application for State employment but also a consideration on
merits of that application when made.
Consequently, in the instant case where such. a ban was in
fact imposed on. the petitioner but, the affidavit filed in
answer to this petition on behalf of the authority imposing
the ban failed to indicate its nature and merely reiterated
that the petitioner had not been deprived of his right to
apply and no opportunity had been given to the petitioner of
showing cause against the imposition of the ban which
evidently prevented his applicaton being considered on the
merits.
Held, that there was a clear infringement of the petiners
fundamental right under Art. 16(1) of the constitution. The
necessity for exact, concise and clear statements in
affidavits must be emphasised.
JUDGMENT:
ORIGINAL JURISDICTION : Petition No. 107 of 1957.
Petition under Art. 32 of the Constitution of India for
enforcement of Fundamental. Rights.
D. D. Chaula, for the petitioner.
C. K. Daphtary, Solicitor-General of India, H. J. Umrigar
and T.M. Sen, for the respondents.
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1961. August 23.The Judgment of the Court was delivered by
SINHA C. J.-Th-is petition under Art. 32 of the Constitution
prays for a writ of mandamus or any other appropriate writ
or direction to the
188
respondents to remove: the- ban. against the petitioner
against his entry into government service. The respondents
to the petition are
1. The Chairman, Central Tractor Organisation,
Ministry of Food and Agriculture, Government
of-India, New Delhi.
2.The Secretary, Ministry of Food and
Agriculture, New’Delhi.
3.The Secretary, Ministry of Home Affairs,
Government of India, New Delhi.
The petition is founded on the following allegations. The
petitioner is a trained machineman. In 1948, he was
employed as a machineman in the Central Tractor
Organisation. He continued in government service and
rendered a good account of himself in that service until, by
a notice dated September 16, 1954, his services were
terminated. The office order No. 375 terminating his
services is at Annexure "A’ to the petition and is in these
terms
"Shri K. C. Nayar s/o Dr. Tara Chand
Designation M/Man is informed that his
services are no longer required in this
Organisation. His services will accordingly
stand terminated with immediate effect from
the date on which this notice is served on
him. In lieu of the notice for one month due
to him under rule 5 of the Central Civil
Service (Temporary Service) Rules, Shri K.C.
Nayar will be given pay and allowances, for
that period. The payment of allowances will,
however, be subject to the conditions under
which such allowances are otherwise
admissible."
The petitioner appealed against the said order of
termination of his services, but his, appeal was rejected.
on December 6, 1954 (Annexure ’B’). Thereafter, the
petitioner applied for and obtained p, certificate-in the
following terms (Annexure
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"Certified that Shri Krishan Chancier Nayar
served in this organisation as a Machineman
in the scale of Rs. 125-6-185 with effect from
13-5-1948 to 21-9-1954. His services were
terminated under Rule 5 of the Central Civil
Services (Temporary Service) Rules, 1949."
After receiving the certificate aforesaid, the petitioner
made several applications for appointment under the
Government, but without any results. Later on "the
petitioner learnt to his dismay that the respondents had
placed a ban on the petitioner being ever taken into
government service". The alleged ban is contained in the
following memorandum (Annexure ’D’);
"With reference to his representations dated
September 9, 1955 and September 21,1955, the
undersigned is directed to inform Shri K.C. Nayar, Ex-Mac
hineman that Government of India
regret their inability to lift the ban on his
employment for the present."
It is this ban which, the petitioner pleads, has
discriminated against him in the matter of government
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employment. The petitioner moved the Circuit Bench of Delhi
of the High Court of Judicature for the State of Punjab,
under Art. 226 of the Constitution, but his petition was
dismissed ,in limine by the Division Bench of that Court by
its order dated September 12, 1956, and an application for
grant of the, necessary certificate for ,appealing to this
Court was also dismissed by the Bench on April 26., 1957.
This Court was moved under Art. 32 of the’ Constitution by a
petition dated August 20, 1957.
The answer to the petition is contained in the affidavit
sworn to by one Mr. G. P. Das, Acting Chairman, Central
Tractor Organisation, Ministry of Food & Agriculture,
Government of India, New Delhi. This document runs into 23
paragraphs and whoever may have been responsible for drawing
up
190
the answer in the form of the affidavit on behalf of the
respondents aforesaid cannot be accused either of brevity or
of accuracy. It is full of repetitions, but, as will
presently appear, does I not answer the main contention
raised on behalf of the petitioner, based on Annexure ID’,
quoted above. Besides containing the usual plea that the
petition was "entirely misconceived and untenable in law",
the affidavit aforesaid on behalf of the respondents states
that the Central Tractor Organisation is a temporary
organisation under the Ministry of Agriculture, Government
of India ; that the petitioner was appointed as a purely
temporary hand ; and that his services were liable to
termination at any time by giving him one month’s notice or
one month’s pay in lieu of th- notice and without assigning
any reasons. The statement is repeated more than once that
the petitioner’s services were duly terminated in accordance
with r. 5 of the Central Civil Services (Temporary Service)
Rules, 1949. Referring to the petitioner’s main grievance,
contained in paragraphs 6 and 7, with particular reference
to the memorandum contained in Annexure ’ID’, referred to
above, the answer is in these terms
"Referring to paragraphs 6 & 7 of the petition
I do not admit that the Respondents had put a
ban on the petitioner being taken into
Government service...... I say that the,
petitioner was not deprived of his right to
apply for any service, and that the petitioner
had no right to appointment. to a Government
Service But it is submitted that the peti-
tioner is entitled to apply for any.
government service and such application would
be considered on its merits."
Then again in paragraph 12, after referring to the temporary
character of his service and its termination. under the rule
aforesaid, the following
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"As regards the ban alleged by the petitioner
it is submitted that it was purely a
Departmental instruction for future guidance
which did or does not in any way prevent the
petitioner from applying for any post under
the Govt. and such application of the peti-
tioner will be entertained on merits and the
petitioner is not debarred from applying for
any post under the Government as he has
alleged in his petition. As the petitioner
was governed by Rule 5 of the Central Civil
Services (Temporary Service) Rules, 1949, no
question of the issue of any show cause notice
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can arise. So far as the question of ban is
concerned it is further submitted that after
the petitioner had submitted his repre-
sentation to the Chairman, Central Trator
Organisation, for reinstatement it was’ duly
considered by the Government which took into
consideration all the circumstances and the
antecedents of the, petitioner and came to the
finding that it would not be desirable to re-
instate him."
The careless and irresponsible way in which the affidavit
has been drawn up is further illustrated by the following
statement in paragraph 13 of the affidavit :
"Referring to paragraph 11 of the petition it
is submitted that the petitioner is not
entitled to move this Hon’ble Court under
Article 32 of the Constitution after his
application for special leave before this
Hon’ble Court from the judgment of the Punjab
High Court, Circuit Bench, was dismissed on
the 26th of April, 1957, and the order passed
by this Hon’ble Court dismissing the said
special leave petition on, the 26th of April,
1957 is final between the parties and should
be treated as res judicata against the present
applications."
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This is reiterated in paragraph 23, which runs as follows :
.LM15
"Referring to Grounds 10 and 11 of the said petition, I say
that there is no fundamental right in the petitioner to move
an application before this Hon’ble Court as he has sought to
do. The petitioner has already exhausted all his remedies
and this Hon’ble Court was also pleased to dismiss his
application for special leave and as such it is submitted
that the present application is wholly misconceived and
should be dismissed with costs."
It is clear that the averments, quoted above, are intended
to convey the idea that this Court dealt with an application
for special leave to appeal from the judgment of the Punjab
High Court, Circuit Bench and dismissed the same by its
order dated April 26, 1957. As a matter of fact, there was
no such special leave application filed in this Court, and,
therefore, there is no foundation, in fact, for that
averment. What appears to have happened is that the High
Court refused to grant the necessary certificate when it was
moved to certify that was a fit case for appeal to this
Court. It is manifest, therefore, that the person
responsible for drawing up the affidavit was either
negligent or ignorant. Such remissness cannot readily be
passed over. Those who are charged with the duty and res-
ponsibility of drawing affidavits to be used in this Court
have got to be circumspect and should not make statements
and reemphasize them when there is no basis, in fact, for
such statements.
As already indicated, the affidavit, in answer to the
petitioner’s case, is unnecessarily verbose. But it does
not suffer only from that infirmity ; it is also misleading
And disingenuous. Though the petitioner had pointedly drawn
attention to the ,ban’ contained in Annexure ID’, quoted
above, and that, indeed, was his main grievance against the
193
respondents, the affidavit in answer to the petition, does
not make any reference,to Annexure. ’D’ and, ignoring
it,purports not to admit that the respondents had put a ban’
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on the petitioner being taken into Government service. The
answer of the respondents is, in effect, that the petitioner
has not ben deprived of his right to apply for a post under
the Government, though so long as the ban’ is there, any
application by the petitioner for employment under the
Government is bound to be, ignored. In spite of the denial
on behalf of the respondents that there was no ban against
the petitioner’s employment under the Government, the fact
of the matter is that the petitioner is under a ban in the
matter of employment under the, Government, and that so long
as the ban continues, he cannot be considered by any
Government department for any post for which he may make ail
application, and for which he may be found qualified. If
the affidavit on behalf of the respondents had clearly
indicated the nature of the ban and the justification
therefore, the Court would have ’been in a better position
in deciding the question whether or not the petitioner had
any substantial grounds for complaining against the
treatment, meted out to, him. A person whohas once been employed
under the Government,and whose services have been
terminated byreason of his antecedents, way or may not
stand ’;on an equal footing with other candidates not-under
such a ban’ of course, the ban imposed by Goverment should
have a reasonable basis and must have some relation to his
suitability for employment or appointment to an office. But
an arbitrary imposition of a ban against the employment of a
certain person, under the Government would certainly amount
to denial of right of equal opportunity of employment,
guaranteed under Art. 16(1) of the Constitntion. In the
instant case, the affidavit filed on behalf of the
respondents does not indicate the nature of the ban, and
whatever may have
194
been the nature of the ban, there does not appear to have
been any proceeding taken against the petitioner giving him
the opportunity of showing cause against the action proposed
to be taken against him. We are, therefore, not in a
position to say that the reason for the ban, whatever its
nature, had a just relation to the question of his
suitability for employment or appointment under the
Government.
It is clear, therefore, that the petitioner has been
deprived of his constitutional right of equality of
opportunity in matters of employment or appointment to any
office under the State, contained in Art. 16(1) of the
Constitution. So long as the ban subsists., any application
made by the petitioner for employment under the State is
bound to be treated as wastepaper. The fundamental right
guaranteed by the Constitution is not only to make an
application for a post under the Government but the further
right to be considered on merits for the post for which an
application has been made. Of course, the right does not
extend to being actually appointed to the post for which an
application may have been made. The "ban’ complained of
apparently is against his being considered on merits. It is
a ban which deprives him of that guaranteed right. The
inference is clear that the petitioner has not been fairly
treated.
The application is, therefore, allowed and a direction
issued to the respondents to remove the ban against the
petitioner. The petitioner is entitled to his costs.
Petition allowed.
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