Krishan Chander Nayar Vs. The
Chairman, Central Tractor Organisation & Ors [1961] INSC 252 (23 August
1961)
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 application
being considered on the merits.
Held, that there was a clear infringement of
the petitioners fundamental right under Art. 16(1) of the constitution. The
necessity for exact, concise and clear statements in affidavits must be
emphasised.
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.
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: theban. 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 189 "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 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 thnotice 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 petitioner
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 191 "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 petitioner 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 can arise. So far as
the question of ban is concerned it is further submitted that after the
petitioner had submitted his representation 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 reinstate
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." 192 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 responsibility 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' on the petitioner being taken into Government
service. The answer of the respondents is, in effect, that the petitioner has
not been 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 who has once been employed under the Government, and
whose services have been terminated by reason 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 Government 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 Constitution.
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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