State of
H. P. Vs. Amar Nath Sharma [1994] INSC
360 (12 July 1994)
Kuldip
Singh (J) Kuldip Singh (J) Yogeshwar Dayal (J)
CITATION:
1994 SCC Supl. (2) 532 JT 1994 (5) 342 1994 SCALE (3)141
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by KULDIP SINGH, J.- The Government of Himachal
Pradesh issued office memorandum dated September 27/29, 1980 (the memorandum)
wherein the procedure for recruitment to Class III and IV posts/services not
within the purview of the Himachal Pradesh Public Service Commission was laid
down.
The
memorandum provided that fresh recruitment to the posts/services mentioned
therein would be made on the basis of an interview which would carry 50 marks
as follows:
"(a)
For belonging to a family of whom not even one 10 marks member is in organised
employment.
(b)
For belonging to a family whose annual income 10 marks does not exceed Rs 6000.
(c)
Minimum educational qualifications.
10
marks (d) General knowledge, experience and personality. 20 marks
-------------- Total 50 marks The word 'family' has been defined by the
Government as 'parents, brothers and unmarried sisters of the candidate'."
2. The
State Government decided to hold special recruitment for Class III and Class IV
posts in accordance with the procedure laid down in the memorandum. Candidates
registered up to the specified dates with the various employment exchanges in
the State of Himachal
Pradesh were called
for interview by the special selection committees constituted for the
recruitment. On the basis of the interviews held by the special selection
committees, merit lists were prepared and the selected candidates were given
appointments.
3. The
selection and the consequent appointments were challenged by way of a batch of
writ petitions under Article 226 of the Constitution of India before the Himachal
Pradesh High Court. A Division Bench of the High Court by its judgment dated 6-8-1982 allowed the writ petitions and quashed part of the
memorandum, the selection and the appointments. These appeals by way of special
leave are against the judgment of the High Court.
4. The
High Court referred to various judgments of this Court and held that it was
permissible for the State to make special provisions for the advancement of
socially and educationally backward class of citizens. The High Court, 535
however, did not agree with the definition of the expression "family"
given in the memorandum and set aside the same on the following reasoning:
"This
definition does not include spouses. In other words, the income of a husband or
a wife of a candidate who may be earning fabulously has not been taken into
consideration. There also seems to be no justification for not excluding
married brothers of a candidate. A married brother has his own obligations and
so it does not stand to reason that his income should be taken into
consideration for deciding the question of weight age for a candidate."
5. The
High Court also struck down the 10 marks provided for a candidate
"belonging to a family of whom not even one member is in organised
employment". According to the High Court a candidate who belongs to a rich
business family cannot be considered socially and educationally backward and as
such is not entitled to any weight age even though not a single member of the
said family is in organised employment.
6. The
High Court, on the examination of the proceedings of the special selection
committees, came to the conclusion that the interviews were held in an
arbitrary manner and quashed the same on the following reasoning:
"The
record relating to the selection of Class III employees reveals that as many as
423 candidates were interviewed. As usual, the record does not show the date of
interview.
If all
these candidates were interviewed on the day, it shows that it was impossible
to give more than one to two minutes to each candidate and the result would be
that arbitrary marks must have been allotted with respect to 'general
knowledge, experience and personality'. There are cases also where in the
interview high marks have been obtained by those who had obtained very low
marks in the examination. For example, at p. 89 at Si. No. 17 is one Miss Nirmala
who obtained only
3.1
per cent marks for educational qualifications, she was given 11 marks for
general knowledge etc. whereas the next two candidates at SI. Nos. 18 and 19
who had secured 5.4 and 5.6 marks for educational qualifications, got only 10
and 11 marks.
Another
person at St. No. 1 on p. 89 who got
5.8
per cent marks for educational qualifications was given only 10 marks. In one
case on p. 65 one Miss Kamla Devi who, to begin with, got 9 marks for interview
was, later on, given two more marks. This appears to have put her up very high
in the total marks. All this shows that the interviews were held in a very
undesirable manner.
The
records of the selection committees for various districts have been placed
before us.
We
have gone through them. We find that selection committees for Districts Solan, Kangra,
Bilaspur, and Kulu have given lump sum marks in respect of general knowledge,
experience and personality. The records of District Una do not show how the
selections were made though the final typed list of the candidates is on
record. As regards the records of Chamba, Mandi, and Hamirpur Districts, these
show that separate marks for general knowledge, experience, and personality
were awarded. The records for District Sirmur placed before us show only the
names of the candidates selected after the interview."
7. The
word 'family' has been defined by the State Government as "parents,
brothers and unmarried sisters of the candidate". We are of the view that
the High Court fell into patent error in quashing the said definition. The
State Government adopted the definition keeping in view the social conditions
in the 536 State. It is contended on behalf of the State that in the existing
social system in the State of Himachal Pradesh, specially in the low income
groups, a married brother does not ordinarily live separately but continues to
be an integral part of the family and this being a matter of common knowledge
the Government was justified to take the same into account while defining the
expression 'family'.
Similarly
the family structure and the social norms in the State of Himachal Pradesh do not encourage the spouses of the
menfolks to seek employment or to work independently for earning. There was no
material before the High Court to have reached the conclusion that the
definition of 'family' adopted by the State Government was arbitrary. We
therefore, set aside the finding of the High Court on this issue and uphold the
definition of 'family' as given in the memorandum.
8. So
far as the weightage provided for the candidates belonging to a family which
has no member in the organised employment, we are of the view that the High Court
was justified in holding the same to be arbitrary. There is no justification
for providing any weightage or incentive for a class of citizens which is not
socially and educationally backward. An affluent family having education and
social status cannot be given any preference in the matters relating to
employment or appointment to any office under the State in the scheme of
Articles 14 and 16 of the Constitution of India. We, therefore, agree with the
High Court and set aside the weightage of 10 marks for a candidate
"belonging to a family for whom not even one member is in organised
employment". This shall operate prospectively from the date of this
judgment. Any selection made prior to the date of this judgment, on the basis
of the memorandum shall be considered valid.
9. The
High Court, in our view, was not justified in quashing the selection procedure.
The High Court has acted merely on surmises and conjectures. We have not been
able to find any material illegality in the conduct of interviews. Simply
because a candidate obtained less marks for educational qualifications and more
marks in the interview, it is no ground to reach the conclusion that the
candidate was favoured. The special selection committees at various district
levels adopted their own procedure to hold the interviews. At some places lump
sum marks were awarded in respect of general knowledge and personality whereas
at other places 20 marks were divided into general knowledge and personality
separately. We see no illegality in the manner of holding the interviews. We,
therefore, set aside the findings of the High Court and hold that the
interviews were held properly.
10.
We, therefore, allow the appeals and set aside the impugned judgment of the
High Court. The writ petitions filed before the High Court by the respondents
are dismissed. No costs.
537
OMPAL SHARMA AND ANOTHER V. STATE OF HIMACHAL PRADESH AND OTHERS ORDER We have
today pronounced judgment in titled State of H.P. v. Amar Nath Sharma1. For the reasons recorded in the said
judgment, we allow this appeal and set aside the High Court judgment and
dismiss the writ petition filed by Respondent 3 before the High Court. No
costs.
UNION OF INDIA V. NASIRMIYA AHMADMIYA CHAUHAN ORDER
1.
N.A. Chauhan, respondent in the appeal herein, was working as a Postmaster in
the service of the Union of India. On attaining the age of 55 years, he was
served with a notice dated 23-4-1990
directing his premature retirement from service after the expiry of the notice
period.
Pursuant
to the said notice he was retired from service by the order dated 26-7-1990. The respondent challenged the order of retirement
before the Central Administrative Tribunal, 1 1994 Supp (2) SCC 532 2 1994 Supp
(2) SCC 532 538 Ahmedabad Bench. The Tribunal allowed the application and set
aside the order of retirement. This appeal by way of special leave is against
the judgment dated 23-10-1992 of the Central Administrative
Tribunal, Ahmedabad Bench.
2. The
order of retirement was challenged before the Tribunal on several grounds. The
Tribunal, however, quashed the order of retirement on the short ground that the
instructions dated 5-1-1978 issued by the Ministry of Home
Affairs providing time-schedule for reviewing the cases of the government
servants for premature retirement were not complied with in the case of the
respondent. The Tribunal proceeded on the following reasoning :
"It
is not in dispute that as per the above O.M. the applicant's case ought to have
been reviewed in the quarter of July to September, 1988 as he had completed the
age of 55 years on 16-3-1989 but his case was not reviewed by the Internal
Screening Committee till 21-2- 1989 and by the High-Power Committee till
21-2-1990. As per the observation in the Nigam case (supra), the principle
behind such instruction is that the sword of Damocles must not hang over the
officer every six months after attaining the age of 50/55 years. On analogy of
the said observation in this case, the respondents by not reviewing the case of
the applicant within the quarter as per the time-schedule resulted in great
prejudice to the applicant, because after the period of quarter July to
September, 1988 was over, the applicant could legitimately believe that as per
this O.M. his case would not be reviewed thereafter unless on the question of
integrity and he could legitimately believe that he would not be made to retire
before his normal age of superannuation. In this case, the review which has
been made is not on the ground of integrity but the ground is that of
inefficiency of the applicant. Thus review not being made as per the
time-schedule, has resulted in great prejudice to the applicant, which vitiates
the order of premature retirement."
3. We
have heard learned counsel for the parties. This Court has authoritatively laid
down in various judgments that the power under Fundamental Rule 56(j) can be
exercised by the appropriate authority at any time in public interest after the
government servant has attained the relevant age or has completed the period of
service as provided under the Fundamental Rules. The appropriate authority has
to form the opinion that it is in the public interest to retire a person under
Fundamental Rule 56(j) on the basis of the service record of the person
concerned. There is no other bar for the exercise of the power under the said
Fundamental Rule by the prescribed authority. Government instructions relied
upon by the Tribunal are only the guidelines laid down, by the Central
Government for its functioning. A government servant cannot be heard to say that
though the order of retirement is justified on the basis of his service record
but since there is violation of some Government instructions the order is
liable to be quashed. The Tribunal was wholly unjustified in holding that
prejudice was caused to the respondent in the sense that he could legitimately
believe that under the instructions his case would not be reviewed after the
lapse of certain period.
The
action under Fundamental Rule 56(j) against a government servant is dependent
on his service record earned by him till he reaches the age or completes the
service provided under the said rule. If the record is adverse then he cannot
take shelter behind the executive instructions and must be "chopped off'
as and when he catches the eye of the prescribed authority.
539
4. On
the last hearing we adjourned the case and directed the Union of India to
produce the personal file of the respondent. We have examined the same and we
are satisfied that there is sufficient material on the record to justify the
order of prematurely retiring the respondent. We, also, permitted the learned
counsel for the respondent to have a took at the record perused by us. We allow
the appeal, set aside the impugned judgment of the Tribunal dated 23-10-1992 and dismiss the application of the respondent filed
before the Tribunal. No costs.
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