It is relevant to underline that the present appeal is confined to consideration of the relief granted by the Tribunal, since upheld by the High Court, to Ankur Gupta (“the third respondent”, hereafter), the sole contesting party, as the other respondents are not interested in the service any longer, according to the information presented to us from the Bar. (Para 3)
However, the Chief Post Master General sent a letter dated 22nd March, 1996 to various Postmasters General. Referring to letters dated 31st January, 1991 and 5th January, 19965 (sic) regarding recognition of educational qualification of 10+2/Intermediate from the vocational stream for direct recruitment, it was conveyed that certificates issued by the Board of High School and Intermediate Education should be admitted unless “these are marked as vocational stream or vocational”. This resulted in holding back of the respondents, who were not sent for long-term training. This triggered the instant litigation. (4(c))
Dissatisfied with the aforesaid letter dated 22nd March, 1996, the respondents approached the Tribunal contesting the legality thereof. Since they had already succeeded in clearing the prescribed examinations, consequent to which their names figured in the merit list, it was prayed that the appellant be directed to send the respondents for the long-term training and consequently, be appointed as Postal Assistants in Lakhimpur Kheri. The Tribunal, vide order dated 6th May (Para (4(d))
The High Court, vide the impugned judgement dated 4th April, 2017, upheld the orders of the Tribunal (Para 4(g))
However, the aforesaid observations of ours do not advance the cause of the appellant in view of the contention advanced on behalf of the third respondent referring to the certificate which was issued to him by the said Board. Such certificate enumerates the subjects which he read during his intermediate education. Out of a total of four subjects, two of them (Hindi and English) are described as vocational subjects. Importantly, the certificate which is partly in vernacular also bears at its foot the remark ‘Regular’ in English. It has been contended on behalf of the third respondent that ‘Regular’ in the certificate signifies regular stream and not vocational stream. (Para 13)
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 is 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. (Para 15)
The determination of the appellant, in the present case, undoubtedly hinged on its scarce knowledge of the nature of the third respondent’s education, evincing that his exclusion was not on the basis of a valid and proper reason and was, decidedly, arbitrary. (Para 18)
The principle that if two views are reasonably possible on a given set of facts and that the courts would stay away from interference and not substitute its view for the view taken by the employer, may not apply in a case of the present nature where the conflicting views could be resolved by a mere reference to the certificate issuing authority to clarify what the certificate connoted. After all, the future of a prospective appointee called for an approach consistent with the preambular promise of securing justice and equality of opportunity, which the appellant failed to secure. (Para 19)
The third respondent, in our view, has been discriminated against and arbitrarily deprived of the fruit of selection. At this distance of time, it would not be worthwhile to order a remand particularly when the appellant is responsible for the lis being prolonged in excess of two decades. There has been utter carelessness on its part in not producing the Amendment Rules and the gazette notification before the Tribunal. The third respondent, therefore, cannot suffer for such carelessness and has to be given what is due to him. At the same time, we cannot overlook that by passage of time, the third respondent has crossed the maximum age for entry into public employment. He is 50 years old now and the age of superannuation is reported to be 60 years. In such a situation, we propose to dispose of this appeal by making appropriate directions in exercise of our power to do complete justice between the parties under Article 142 of the Constitution. (Para 20)
Accordingly, it is directed that:
(i) The third respondent shall be offered appointment, initially on probation, by the appellant on a post of Postal Assistant (for which he was selected) within a month from date;
(ii) If no post is vacant, a supernumerary post shall be created;
(iii) Subject to satisfactory completion of the period of probation, the third respondent shall be confirmed in service;
(iv) Should service rendered during probation be considered not satisfactory, the appellant will be entitled to proceed in accordance with law;
(v) Having not actually worked, the third respondent shall neither be entitled to arrears of salary nor shall he be entitled to claim seniority from the date of appointment of other candidates who participated in the recruitment process of 1995;
(vi) Since the third respondent, if confirmed after successful period of probationary service, would have less than 10 years’ service to his credit and consequently would fall short of qualifying service for pension and other retiral benefits, the appellant shall treat him to have been notionally appointed on the date the last of the selected candidates was appointed pursuant to the process of 1995 only for the purpose of release of such benefits in accordance with law; and
(vii) In such case, his retiral benefits shall be computed based on the last pay drawn by him while in service.
(viii) These directions will not be applicable to any respondent, other than the third respondent. (Para 21)
SUPREME COURT OF INDIA
2023 STPL(Web) 335 SC
[2023 INSC 901]
Union Of India Vs. Uzair Imran & Ors.
Civil Appeal Nos. 6668-6669 of 2023 [Arising Out Of Slp (Civil) Diary No. 21319/2022]-Decided on 11-10-2023
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