Bombay High Court
Sonali Pramod Dhawde vs Central Bank Of India on 1 April, 2013
Bench: A.M. Khanwilkar, Mridula Bhatkar
sqp/vss
wp-l-2825.2012(J).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODG.) NO.2825 OF 2012
1. Sonali Pramod Dhawde )
age 23 years, Room No.5, )
Pangeri Chawl, A.G. Pawar Lane No.2, )
Byculla (East), Mumbai -27 )
2. Vishal Nikam, 30 years )
19/106, Harharwala Building )
4th floor, N.M. Joshi Marg, Delisle )
Road, Mumbai - 11 )
3. Shilpa Sitaram Jadyarig )
27 years, residing at 2/223, )
Ranvir Sadan, Tejukaya Mansion )
Dr.B.A. Road, Lalbaug )
Mumbai - 12 )
4. Kavita Ganpat Takke )
29, years, residing at 1/127, )
Pimpleshwar Krupa, S.B. Pawar Marg, )
Currey Road (W), Mumbai ) ... Petitioners
Vs.
1. Central Bank of India )
having its regd. Office at "Chandermukhi" )
Nariman Point, Mumbai )
2. Union of India )
having its Mumbai Office located )
at Aayakar Bhavan, M.K. Road, Mumbai ) .... Respondents
Mr.Bhavesh Parmar i/b Devmani Shukla for Petitioners
Mr.J.P. Cama, Sr.Advocate with Lancy D'souza i/b V.M. Parkar for
Respondent No.1
Mr.R.C.Master a/w Mr.H.V.Mehta for Respondent No.2
sqp /vss 1 of 69
::: Downloaded on - 09/06/2013 19:47:11 :::
wp-l-2825.2012(J).doc
CORAM: A.M. KHANWILKAR &
MRS.MRIDULA BHATKAR, JJ.
DATED: APRIL 1, 2013
JUDGMENT (Per Khanwilkar, J.) :
1. Rule. Respondents waive notice through their respective Counsel.
2. Rule returnable forthwith, by consent. Heard Counsel appearing for the parties, including the interventionists in the companion petition, which has been disposed of today by a separate order.
3. This Writ Petition, under Article 226 of the Constitution of India, primarily, challenges the recruitment policy of the respondent-Bank dated 5.3.2009 - of permitting filling of vacancies in Officers cadre earmarked for direct recruits through campus interview or campus recruitment process. The petitioners assert that they possess requisite qualifications and are eligible to be appointed against the vacant posts in the respondent - Bank, as per its recruitment policy dated 5.3.2009.
4. The petitioners have filed this petition on 26.11.2012, after becoming aware about the pendency of other petitions in this Court challenging the selfsame recruitment policy that allows filling of vacancies earmarked for direct recruits through campus interview being sqp /vss 2 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc contrary to the settled legal position expounded by the Constitution Bench of the Apex Court in the case of Secretary, State of Karnataka vs. Uma Devi (3)1. Since the petitioners were advised that the outcome of the pending Writ Petitions may affect the rights of the petitioners and similarly placed persons, who had legitimate expectation to compete for getting employment in the respondent - Bank, they decided to file the present petition, praying for the following substantive reliefs:
"(a) ...
(b) For a writ or an order in the nature of a writ directing
the Respondents to immediately and forthwith strictly adhere and comply with the law laid down by the Hon'ble Supreme Court in the case of Umadevi and also the mandatory requirement of complying with the provisions laid down under the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 and Rules 1960 framed therein in relation to any recruitment done or proposed to be done hereinafter.
(c) For a writ or an order in the nature of a writ directing the Respondents to immediately and forthwith restrain and refrain themselves from indulging in campus recruitment through selected campuses and selected institutes for the purpose of recruitment of candidates to its management positions by declaring such mode of recruitment envisaged in the recruitment policy dated 5.3.2009 by the Central Bank of India as being bad and illegal under the law.
For the writ or an order in the nature of a writ directing the Respondents to immediately and forthwith restrain and refrain the Government of India from allowing the various public sector banks to whom circular / directive dated 19.9.2001 and / or 22.2.2005 were issued from indulging in recruitment through campuses on the ground of autonomy 1 (2006) 4 SCC 1 sqp /vss 3 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc given to them by declaring the said circulars/directives bad and illegal to the limited extent of recruitment through campus.
(e) For a writ or an order in the nature of a writ directing the Respondents to immediately and forthwith cancel/terminate the various appointments made through campus recruitment as per recruitment policy dated 5.3.2009 and Board approval dated 28.3.2009 and upon such cancellation/termination complete the entire process of recruitment in accordance with the law laid down by the Hon'ble Supreme Court in the case of Umadevi and the provisions of The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 and Rules 1960 framed therein.
(f) For a writ or an order in the nature of a writ directing prosecution and punishment of the concerned officials of the Respondent No.1 and/or 2 for violating the provisions of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 and Rules 1960 framed therein for not complying with the provisions of the aforesaid Act and Rules for the last many years and more particularly from the year 2009 till date when campus recruitment was done while recruiting candidates in management positions. ............"
5. According to the petitioners, the method of campus interview resorted to by the respondent - Bank, for filling vacancies of officers of the respondent - Bank earmarked for direct recruits, was in the teeth of the rights guaranteed to all the citizens under Articles 14, 16 and 21 of the Constitution of India - no matter the insignificant number or percentage of such posts to be filled in in that manner. The thrust of the challenge rests on the exposition of the Apex Court in Uma Devi's case (supra). According to the petitioners, the appointment to be made by the sqp /vss 4 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc respondent - Bank, which is, admittedly, an instrumentality of the State, was in the nature of back-door public employment, of its management recruits.
6. This petition is resisted by the respondent - Bank by filing affidavit of Rajkiran Rai G., General Manager, HRD dated 3.12.2012. The respondent - Bank has also relied on the two affidavits filed before this Court, in the companion Writ Petition (L) No.1008 of 2012, which was heard alongwith the present petition, raising overlapping issues. As regards these petitioners, the respondent - Bank has raised serious objection about their locus. According to the respondent - Bank, the petitioners have failed to substantiate that all or anyone of them possesses the requisite qualification and eligibility criterion for appointment in Middle Management (Grade II) (Main Stream). Further, inspite of being called upon to furnish such information, the petitioners have failed to do so. Moreover, this petition has been filed only after realising that the companion petition would fail. For that reason alone, the petition should be dismissed. According to the respondent - Bank, the recruitment process through campus interview is a well known method and is permitted as per its recruitment and promotion policy.
That policy has been evolved and articulated on the basis of the directives issued by Respondent No.2 - Union of India, with a view to sqp /vss 5 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc grant complete autonomy to the Public Sector Banks (`PSBs', for short) as also to address the Human Resources (`HR', for short) initiatives to be taken by those banks. The said policy has been duly approved by the Board of Directors of the respondent - Bank and is being implemented since year 2009. It is submitted that this petition, filed in the year 2012, to challenge that policy, therefore, suffers from laches and delay. Further, on the basis of the said policy, the respondent -
Bank has already recruited a total of 438 officers through campus interview, as against the intake of 3567 officers through advertisements, between years 2009 - 2010 to 2011 - 2013. In terms of percentage, it does not exceed 12.27% of the total appointments made by the respondent - Bank. Further, Campus Selection is a well known commercial practice. It facilitates in identifying and selecting the best talent, who would provide new direction to the business policy of the organisation because of their superior knowledge about the latest technology and innovative business techniques and methods.
Considering the manifold increase in the activities of the PSBs, who are constantly on the competing mode by reducing their response time in meeting the diversified needs of the customers, a renewed approach of peoples systems and HR approach had become inevitable. For that, campus recruitment is the only way forward and moreso, because several other public sector undertakings were already following that sqp /vss 6 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc method of recruitment for quite some time. The selection through campus recruitment is a separate mechanism and is incomparable with the method of recruitment by advertisements. The petitioners, having completed their education and as they are not pursuing any course in any Institution, cannot complain about discrimination. Moreover, campus recruitment is the need of the contemporary business techniques, policies and initiatives for which reason, it cannot be said to be unreasonable. The mechanism provided for campus recruitment is not only transparent and fair but also ensures objectivity. In that, an independent committee of experts is appointed to consider the competing claims of candidates being considered through campus interview process and the best amongst them, is chosen for being absorbed in services upon completion of the training period. The said process is neither arbitrary nor discriminatory qua the petitioners herein and similarly placed persons, but being the need of the hour, has become imperative. That the grievance of the petitioners is not about any malafide exercise of power in formulation of the recruitment policy nor about the procedure followed by the respondent - Bank for appointment through the campus interview as per that policy. As a result, the challenge to the recruitment policy is completely devoid of merits and moreso, at the instance of the petitioners, who cannot claim to be on par with the class of candidates considered in campus sqp /vss 7 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc interview process. The respondent - Bank has also highlighted the procedure followed for identifying the colleges / institutions, from which the candidates are considered and interviewed. Even that procedure, it is stated is transparent and objective. Any institution desirous of being empanelled by the respondent - Bank for campus interview process is free to apply and that application is scrutinised by the experts' committee. These are the broad points on the basis of which the respondent - Bank has opposed granting of any relief to the petitioners.
7. After having perused the pleadings and the accompanying documents and also considering the oral arguments, the foremost question that needs to be considered is about the locus of the petitioners. No doubt, the petitioners have vaguely stated in the petition that they possess educational qualification and are eligible for employment with the respondent - Bank as per the recruitment policy dated 5.3.2009 and that inspite of being called upon by the respondent
- Bank to substantiate the same by furnishing inspection of the relevant documents, have failed to do so. The respondent - Bank had insisted in writing for inspection because, as per the Bank's recruitment policy for appointment in Middle Management (Grade II) (Main Stream), the qualification required is first class Post Graduate degree or first class Graduate or any equivalent qualification recognised as such by the sqp /vss 8 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc Government of India and minimum second class MBA. The Graduate or the Post Graduate degree must be from a University recognised by the UGC and the MBA degree should be from a recognised Institute / University. As aforesaid, the petitioners have failed to clearly assert that they possess this qualification, but have stated on affidavit that they possess requisite qualification and thus are eligible for employment in the respondent - Bank. Merely because the petitioners' Advocate expressed inability to produce the Degree Certificates due to paucity of time or that it were not produced at least during arguments, in our opinion, cannot be the basis to throw out this petition at the threshold.
The petitioners have justly relied on the exposition of the Constitution Bench of the Apex Court in the case of D.C.Wadhwa (Dr.) vs. State of Bihar2. In paragraph 3, the Court has observed thus:
"3. ............. The rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be the legislature or the executive or any other authority should be within the constitutional limitations and if any practice is adopted by the executive which is in flagrant and systematic violation of its constitutional limitations, Petitioner 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice ............"
(emphasis supplied) 2 (1987) 1 SCC 378 sqp /vss 9 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc Accordingly, the preliminary objection under consideration is negatived.
8. As regards the next preliminary objection regarding non-joinder of necessary parties, even this objection is devoid of merits. Inasmuch as, the petitioners are not asking for termination of the officers already employed by the respondent - Bank through campus recruitment process in the past. The petitioners are essentially praying for quashing of the recruitment policy allowing appointment by campus recruitment method as formulated by the respondent - Bank dated 5.3.2009, being unconstitutional, illegal and against the fundamental rights enshrined in Articles 14, 16 and 21 of the Constitution of India. As a consequence of this declaration, direction is sought against the respondents to henceforth forbear from resorting to campus recruitment method for filling up vacancies of officers in the respondent - Bank earmarked for the direct recruits, from amongst the students of the selected Institutes/Colleges. In other words, the petitioners are claiming relief of general nature against the State and not against individual party. In that case, non-joinder of selected candidates is not fatal. (See GM, South Central Railway v. A.V.R. Siddhanti3). Further, the candidates who are "yet to be appointed" against the public posts of officers or "absorbed in 3 (1994) 4 SCC 335) sqp /vss 10 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc services" of the respondent - Bank, can and will have no vested right to claim that they must be appointed dehors the constitutional scheme. In either case, joining of such persons as party respondents to the present proceedings being necessary or proper parties, does not commend to us.
9. It is indisputable that the respondent - Bank has been restrained by this Court from absorbing any of the employees selected in campus interview in terms of order dated 26.6.2012. As aforesaid, the petitioners are not claiming any reliefs or direction against the respondent - Bank to terminate the services of officers who have already been appointed and absorbed prior to 26.6.2012. In this view of the matter, reliance placed by the respondent - Bank on the decision in the case of Prabhod Verma vs. State of Uttar Pradesh 4, is inapposite.
In that case, the persons whose services were terminated by the State Authorities made grievance before the Apex Court that since they were already in service, the Writ Petition filed by the Association without the reserve pool teachers being made respondents to the Writ Petition or at least in representative capacity, the Writ Petition suffered from non-
joinder of parties. Further, in that case, the petitioners refused to join those persons, who were necessary and proper parties and inspite of 4 AIR 1985 SC 167 sqp /vss 11 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc that, the Writ Petition filed by the Sangh was entertained and orders passed, which affected those persons who were not before the Court.
10. The next objection taken by the respondent - Bank, is that, the petitioners have abused the process of Court. In that, this petition has been filed after several hearings of Writ Petition (Lodging) No.1008 of 2012 and moreso, because the petitioners in that petition realised that they had no locus standi to pursue the grievance made by them. Indeed, the companion Writ Petition was filed in April, 2012 and was heard on different dates. However, that does not mean that the petitioners, who otherwise claim to possess requisite qualifications, as per the recruitment policy, can be denuded of pursuing the challenge in the present petition. Moreso, when the grievance is not about some irregularity committed by the State Authorities in the matter of public employment, but raising issues which go to the root of authority of the State and Instrumentalities of the State to adopt policy, which is in the teeth of the rights guaranteed to the citizens of India under Part III of the Constitution of India. We are not impressed by the objection under consideration, which, in our opinion, if accepted, would be taking a hyper technical view.
sqp /vss 12 of 69
::: Downloaded on - 09/06/2013 19:47:11 :::
wp-l-2825.2012(J).doc
11. Reverting to the preliminary objection that this petition suffers from laches because the policy regarding recruitment through campus interview is in place since year 2009 and secondly, that this petition has been filed only to overcome the deficiencies noticed in the companion writ petition during the arguments, none of these objections commend to us. Firstly, the fact that this petition, filed in the year 2012, takes exception to the policy formulated in the year 2009. The fact that the said policy has been implemented since then, does not and cannot denude the petitioners of their remedy to complain about the infraction of their rights guaranteed by the Constitution. There is nothing on record to indicate that the decision to adopt procedure of recruitment through campus interview to fill in the vacancies earmarked for direct recruits, which was given effect to since 2009, was in public domain.
The petitioners herein cannot be expected to have access to that information. The petitioners on affidavit have stated that they got knowledge about the same only after reading news item regarding pendency of other petitions in this Court, which appeared in the local newspaper very recently. There is no reason to doubt the correctness of this statement. Even otherwise, the argument of laches because of implementation of the policy for last around 3 years, is too hypertechnical argument to throw out the petition at the threshold.
sqp /vss 13 of 69
::: Downloaded on - 09/06/2013 19:47:11 :::
wp-l-2825.2012(J).doc
12. Similarly, the argument that this petition has been filed only to cover up the deficiencies noticed in the companion writ petition during the arguments, also does not commend to us. Inasmuch as, the petitioners have invoked remedy under Article 226 of the Constitution of India, in their own rights and complaining of infraction of their fundamental rights due to denial of equal opportunity in the matter of public employment. Accordingly, the preliminary objection under consideration is devoid of merits.
13. Reverting to the principal issue, we may accept the stand of the respondents, for the sake of argument, that the process of appointment through campus recruitment is a distinct mechanism and class by itself.
It would then follow that the petitioners who are no more pursuing education in any college/institution, much less, the specified colleges/institutions from where the students are interviewed for campus recruitment, cannot raise any issue of discrimination. However, in our opinion, that does not preclude the petitioners and similarly placed persons from questioning the policy of the respondent-bank, which permits such recruitment method against public posts, being impermissible and ultra vires the constitutional scheme. For, it impinges upon the fundamental rights of persons who are otherwise qualified, sqp /vss 14 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc eligible and suitable for being appointed in the selection process for direct recruits through advertisements - no matter the insignificant percentage of appointments made through campus interview, as in this case 12.27% of the total intake of officers of the respondent bank during the relevant period.
14. The moot question is: Does the constitutional scheme allows filling of vacancies of direct recruits through "any other method" than by issuing public advertisements and by giving wide publicity to invite applications from "all" the qualified and eligible candidates to compete for being appointed against such vacancies? If this question is answered in the negative, any amount of explanation given by the respondent - bank for taking recourse to the method of campus interview, will be of no avail. It is well established position that neither the Parliament nor the State Legislature in this Country can transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16(1) of the Constitution is a facet, as restated in paragraph 65 of Indira Sawhney vs. Union of India5. Understood thus, the respondent bank cannot be permitted to defend its action merely because it has formulated such recruitment policy in conformity with the directives issued by the Government of 5 (2000) 1 SCC 168 sqp /vss 15 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc India to grant autonomy to PSBs. Neither such direction of Government of India nor the policy formulated by the respondent - Bank, which is a public sector bank and therefore an instrumentality of the State, will be of any avail or a tangible ground to uphold the impugned policy, if the Parliament or the State Legislature is not competent to legislate on that subject.
15. The question as to how appointments against public posts should be made is no more res integra. The Constitution Bench of the Apex Court in Umadevi (3) (supra), after adverting to the gamut of authorities, has, in no uncertain terms, restated the legal position that the regular process of recruitment or appointment has to be resorted to, when regular vacancies in public posts, at a particular time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on "patronage" or "other considerations".
Regular appointment must be the rule. Indeed, this decision deals with the problem posed at the instance of the State, in relation to the directions given by the High Court concerning the appointment of temporary, contractual, casual or daily-wages workers. However, the dicta in this decision is about the mandate of the Constitutional Scheme, in making appointments against public posts. The Court has noted that the guarantee of equality in the matter of employment is an sqp /vss 16 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc inviolable right and the State as an employer - and a model employer -
is subjected to the constitutional limitations and cannot exercise its powers arbitrarily. The only way to effectuate the guarantee of equality of opportunity to public employment, is, to follow the procedure which is fair and would not jettison the scheme of public employment guaranteed by the Constitution. That can be done only by providing "opportunity to all" qualified, eligible and suitable candidates "to compete for public employment", by inviting applications from them "through advertisement" and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of the candidates who have applied in response to the advertisement made. The Constitution Bench has reaffirmed that the regular appointment to a post under the State or Union cannot be made "without issuing advertisement", inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete.
The petitioners have stoutly placed reliance on the exposition in paragraphs 2 to 4, 6, 11, 13, 26, 28, 40 to 43, 45, 47, 50 and 51 of Umadevi's case (supra). We deem it apposite to extract relevant portions from those paragraphs, being directly on the matter in issue.
The same are as follows:
sqp /vss 17 of 69
::: Downloaded on - 09/06/2013 19:47:11 :::
wp-l-2825.2012(J).doc
"2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated as equals. Thus, any public employment has to be in terms of the constitutional scheme.
3. A sovereign Government, considering the economic situation in the country and the work to be got done, is not precluded from making temporary appointments or engaging workers on daily wages.......
..... But, a regular process of recruitment or appointment has to be resorted to, when regular vacancies in posts, at a particular point of time, are to be filled up and the filling up of those vacancies cannot be done in a haphazard manner or based on patronage or other considerations. Regular appointment must be the rule.
4. .................. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commission or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. .....................................
6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See Basu's Shorter Constitution of India). ...........
....................... The State is meant to
sqp /vss 18 of 69
::: Downloaded on - 09/06/2013 19:47:11 :::
wp-l-2825.2012(J).doc
be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. ................
11. In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. ............. ............In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. .......................
................. As a part of the affirmative action recognized by Article 16 of the Constitution, Article 335 provides for special consideration in the matter of claims of the members of the scheduled castes and scheduled tribes for employment. ................ ...... The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein.
13. ................. Such considerations can have only a limited role to play, when every qualified citizen has a right to apply for appointment, the adoption of the concept of rule of law and the scheme of the Constitution for appointment to posts. It cannot also be forgotten that it is not the role of courts to ignore, encourage or approve appointments made or engagements given outside the constitutional scheme. In effect, orders based on such sentiments or approach would result in perpetuating illegalities and in the jettisoning of the scheme of public employment adopted by us while adopting the Constitution. The approving of such acts also results in depriving many of their opportunity to compete for public employment. ........
26. ................... This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut sqp /vss 19 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc its eyes to the persistent transgression of the rules of regular recruitment. ................
38. In Union Public Service Commission v. Girish Jayanti Lal Vaghela, (2006) 2 SCC 482, this Court answered the question, who was a government servant and stated: (SCC p.490, para 12) "12. Article 16 which finds place in Part III of the Constitution relating to fundamental rights provides that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. The main object of Article 16 is to create a constitutional right to equality of opportunity and employment in public offices.
The words "employment" or "appointment"
cover not merely the initial appointment but also other attributes of service like promotion and age of superannuation etc. The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution (see B.S.Minhas v. Indian Statistical Institute, AIR 1984 SC 363."
sqp /vss 20 of 69
::: Downloaded on - 09/06/2013 19:47:11 :::
wp-l-2825.2012(J).doc
40. At this stage, it is relevant to notice two aspects. In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, this Court held that Article 14, and Article 16, which was described as a facet of Article 14, is part of the basic structure of the Constitution of India. The position emerging from Kesavananada Bharati, was summed up by Jagannatha Rao, J., speaking for a Bench of three Judges in Indira Sawhney v. Union of India, (2000) 1 SCC 168. That decision also reiterated how neither the Parliament nor the Legislature could transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16(1) is a facet. This Court stated: (Indira Sawhney case, SCC p.202, paras 64-65) "64. The preamble to the Constitution of India emphasises the principle of equality as basic to our constitution. In Keshavananda Bharati v. State of Kerala, it was ruled that even constitutional amendments which offended the basic structure of the Constitution would be ultra vires the basic structure. Sikri, CJ. laid stress on the basic features enumerated in the preamble to the Constitution and said that there were other basic features too which could be gathered from the Constitutional scheme (para 506-A of SCC). Equality was one of the basic features referred to in the Preamble to our Constitution. Shelat and Grover, JJ. also referred to the basic rights referred to in the Preamble. They specifically referred to equality (paras 520 and 535-A of SCC). Hegde & Shelat, JJ. also referred to the Preamble (paras 648,
652). Ray, J. (as he then was) also did so (para
886). Jaganmohan Reddy, J. too referred to the Preamble and the equality doctrine (para 1159). Khanna, J. accepted this position (para 1471). Mathew, J. referred to equality as a basic feature (para 1621). Dwivedi, J. (paras 1882, 1883) and Chandrachud, J.(as he then was) (see para 2086) accepted this position.
65. What we mean to say is that Parliament and the legislature in this Country cannot transgress the basic feature of the Constitution, namely, the principle of equality sqp /vss 21 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc enshrined in Article 14 of which Article 16(1) is a facet."
41. In the earlier decision in Indra Sawhney v. Union of India, B.P. Jeevan Reddy, J. speaking for the majority, while acknowledging that equality and equal opportunity is a basic feature of our Constitution, has explained the exultant (sic exalted) position of Articles 14 and 16 of the Constitution in the scheme of things. His Lordship stated : (SCC pp.633-634, paras 644-
45) "644[6]. The significance attached by the founding fathers to the right to equality is evident not only from the fact that they employed both the expressions 'equality before the law' and 'equal protection of the laws' in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18....
645[7]. Inasmuch as public employment always gave a certain status and power --- it has always been the repository of State power
---besides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1), expressly declares that in the matter of public employment or appointment to any office under the state, citizens of this country shall have equal opportunity while clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them. At the same time, care was taken to, declare in clause (4) that nothing in the said Article shall prevent the state from making any provision for reservation of appointments or posts in favour of any backward class of citizen which in the opinion of the state, is not adequately represented in the services under the state... (See paras 6 and 7 in SCR pp.544 and 545.) These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment.
sqp /vss 22 of 69
::: Downloaded on - 09/06/2013 19:47:11 :::
wp-l-2825.2012(J).doc
42. ............
43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. ...........................
....... The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
45. ...............
47. ................
50. It is argued that in a country like India where there is so much poverty and unemployment and there is no equality of bargaining power, the action of the State in not making the employees permanent, would be violative of Article 21 of the Constitution. But the very argument indicates that there are so many waiting for employment and an equal opportunity for competing for employment and it is in that context that the Constitution as one of its basic features, has included Articles 14, 16 and 309 so as to ensure that public employment is given only in a fair and equitable manner by giving all those who are qualified, an opportunity to seek employment. In the guise of upholding rights under Article 21 of the Constitution of India, a set of persons cannot be preferred over a vast majority of people waiting for an opportunity to compete for State employment. ..................
51. The argument that the right to life protected by Article 21 of the Constitution of India would include the right to employment cannot also be accepted at sqp /vss 23 of 69 ::: Downloaded on - 09/06/2013 19:47:11 ::: wp-l-2825.2012(J).doc this juncture. The law is dynamic and our Constitution is a living document. May be at some future point of time, the right to employment can also be brought in under the concept of right to life or even included as a fundamental right. The new statute is perhaps a beginning. As things now stand, the acceptance of such a plea at the instance of the employees before us would lead to the consequence of depriving a large number of other aspirants of an opportunity to compete for the post or employment. Their right to employment, if it is a part of right to life, would stand denuded by the preferring of those who have got in casually or those who have come through the back door. The obligation cast on the State under Article 39(a) of the Constitution of India is to ensure that all citizens equally have the right to adequate means of livelihood. It will be more consistent with that policy if the courts recognize that an appointment to a post in government service or in the service of its instrumentalities, can only be by way of a proper selection in the manner recognized by the relevant legislation in the context of the relevant provisions of the Constitution. In the name of individualizing justice, it is also not possible to shut our eyes to the constitutional scheme and the right of the numerous as against the few who are before the court. The Directive Principles of State Policy have also to be reconciled with the rights available to the citizen under Part III of the Constitution and the obligation of the State to one and all and not to a particular group of citizens. We, therefore, overrule the argument based on Article 21 of the Constitution.
(emphasis supplied).
16. The argument of the respondents that, this decision is not an authority on the proposition that the public posts must necessarily be filled up "only through public advertisements", will have to be stated to be rejected. Inasmuch as even though the Apex Court was considering the issue in the context of daily wagers/temporary employees, after adverting to the gamut of reported cases, it has reaffirmed the mandate sqp /vss 24 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc of Articles 14 and 16 of the Constitution. It has noticed that Article 14 is a genus while Article 16 is one of its species.
17. It may be useful to advert to the case of E.P.Royappa vs. State of Tamil Nadu & Anr,6 wherein the Constitution Bench of the Apex Court, in paragraph 85 thereof, observed thus:
"85. The last two grounds of challenge may be taken up together for consideration. Though we have formulated the third ground of challenge as a distinct and separate ground, it is really in substance and effect merely an aspect of the second ground based on violation of Articles 14 and 16. Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the concept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species, Article 16 gives effect to the doctrine or equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality 6 (1974) 4 SCC 3 sqp /vss 25 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and Constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on equivalent relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice : in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16."
(emphasis supplied)
18. There is yet another recent decision of the Apex Court which has had occasion to consider the mandate of Article 16 that guarantees equality of opportunity for all citizens in matters relating to public employment in any office under the State or the Instrumentalities of the State, in the case of State of Bihar vs. Upendra Narayan Singh7, In paragraphs 17 and 18 thereof, the Court observed thus:
"17. ..... Equality of opportunity to all irrespective of their caste, colour, creed, race, religion and place of birth which constitutes one of the core values of the Universal Declaration of Human Rights also forms part of preamble to the Constitution of India, which 7 (2009) 5 SCC 65 sqp /vss 26 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc reads as under:
"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
igIN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION."
18. For achieving various goals set out in the preamble, framers of the Constitution included a set of provisions in Part III with the title "Fundamental Rights" and another set of provisions in Part IV with the title "Directive Principles of State Policy". The provisions contained in Part III of the Constitution by and large contain negative injunctions against State's interference with the fundamental rights of individuals and group of individuals and also provide for remedy against violation of such rights by direct access to the highest Court of the country. Part IV enumerates State's obligation to make policies and enact laws for ensuring that weaker segments (have nots) of the society are provided with opportunities to come up to a level where they can compete with others (haves)."
(emphasis supplied).
In Paragraph 25 of the same decision, the Court observed thus:
25.The equality clause enshrined in Article 16 mandates that every appointment to public posts or office should be made by open advertisement sqp /vss 27 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc so as to enable all eligible persons to compete for selection on merit Umesh Kumar Nagpal v.
State of Haryana and Ors. [1994] 3 SCR 893 ; Union Public Service Commission v. Girish Jayanti Lal Vaghela, AIR 2006 SC 1165 ; State of Manipur and Ors. v. Y. Token Singh and Ors. (2007) 5 SCC 65 and Commissioner, Municipal Corporation, Hyderabad and Ors. v. P. Mary Manoranjani and Anr. AIR 2008 SC 1089. Although, the Courts have carved out some exceptions to this rule, for example, compassionate appointment of the dependent of deceased employees, for the purpose of this case it is not necessary to elaborate that aspect."
(emphasis supplied).
This decision extracts the relevant portion from the decision in the case of Excise Superintendent vs. K.B.N. Visweshwara Rao. 8 In paragraph 6 thereof, the three - Judge Bench of the Apex Court noted that many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Therefore, in addition, the Appropriate Authority should invite applicants to compete by publication in the newspapers having wider circulation and also display on their office notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. Only on following this procedure, fair play would be subserved and equality of opportunity provided to all eligible candidates in the matter of public employment. This view has been reiterated in the case of Union Public Service Commission vs. Girish 8 (1996) 6 SCC 216 sqp /vss 28 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc Jayantilal Vaghela9 and in paragraph 9 of Arun Kumar Nayak vs. Union of India.10
19. After having considered the relevant decisions, the Apex Court in Upendra Singh (supra), concluded thus:
"31. The ratio of the above noted three judgements is that in terms of Section 4 of the 1959 Act, every public employer is duty bound to notify the vacancies to the concerned employment exchange so as to enable it to sponsor the names of eligible candidates and also advertise the same in the newspapers having wider circulation, employment news bulletins, get announcement made on radio and television and consider all eligible candidates whose names may be forwarded by the concerned employment exchange and/or who may apply pursuant to the advertisement published in the newspapers or announcements made on radio/television.
32. Notwithstanding the basic mandate of Article 16 that there shall be equality of opportunity for all citizens in matters relating to employment for appointment to any office under the State, the spoil system which prevailed in America in 17th and 18th centuries has spread its tentacles in various segments of public employment apparatus and a huge illegal employment market has developed in the country adversely affecting the legal and constitutional rights of lakhs of meritorious members of younger generation of the country who are forced to seek intervention of the court and wait for justice for years together."
(emphasis supplied).
In paragraph 38, the Court has observed thus:
"38. With a view to insulate the public employment apparatus in independent India from the virus of spoil system, the framers of the Constitution not only made 9 (2006) 2 SCC 482 10 (2006) 8 SCC 111 sqp /vss 29 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc equal opportunity in the matter of public employment as an integral part of the fundamental rights guaranteed to every citizen but also enacted a separate part, i.e., Part XIV with the title "Services under the Union and the States. ........ ".
(emphasis supplied).
The Court has also adverted to the exposition in the case of Union of India v. N.Hargopal11, in para 9 thereof. Relevant portion of paragraph 9 of that decision reads thus :
"9. ...The object of recruitment to any service or post is to secure the most suitable person who answers the demands of the requirements of the job.
In the case of public employment, it is necessary to eliminate arbitrariness and favouritism and introduce uniformity of standards and orderliness in the matter of employment. There has to be an element of procedural fairness in recruitment. If a public employer chooses to receive applications for employment where and when he pleases, and chooses to make appointments as he likes, a grave element of arbitrariness is certainly introduced. This must necessarily be avoided if Articles 14 and 16 have to be given any meaning.
................................."
(emphasis supplied)
20. The common thread (of exposition of the Apex Court) running through all these decisions, tersely put, is that, issuing of open public advertisements for inviting applications from "all" the eligible persons to compete for selection on merit for being appointed against the public posts, is the only regime which guarantees equality of opportunity under Article 16 r/w Article 14. There is injunction against the State to refrain from interfering with the fundamental rights of equality of 11 (1987) 3 SCC 308 sqp /vss 30 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc opportunity in the matter of public employment. Neither the Parliament nor the State Legislature can abridge that right. On the other hand, the Constitutional scheme impels the State to make policies and laws to uphold fairness, transparency, equality and also further the cause of the weaker segments of the Society, in the matter of public employment.
21. No Supreme Court decision has been brought to our notice, which holds that appointments of direct recruits against public posts can be done through campus interview, as an exception to the rule of selection process by giving public advertisement and inviting applications from all interested persons who are duly qualified and eligible to be considered in furtherance of the rule of equality of opportunity. Notably, the framers of the Constitution have enacted provision, to spell out the exceptions to the Rule of Equality of opportunity in the matters of public employment guaranteed under Article 16(1) and (2) to the Constitution, by incorporating clauses (3) to (5) in Article 16 of the Constitution of India.
Clause (3) is an enabling provision. It enables the Parliament to make a law to prescribe, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other Authority within, a State or Union Territory, any requirement as to residence within that State or Union Territory prior to such employment or appointment. Clause (4) of Article 16 enables the State to make sqp /vss 31 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State. Clause (4A) of Article 16 pertains to reservation in matters of promotion with which we are not concerned in the present case. Similarly, Clause (4B) of Article 16 deals with Authority of the State to consider any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or (4A) as a separate class of vacancies to be filled up in any succeeding year or years. Clause (5) of Article 16 stipulates that Article 16 shall not affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the government body thereof shall be a person professing a particular religion or belonging to a particular denomination. The impugned policy of allowing appointments to the post of Officers of the respondent-Bank through campus interview/campus recruitment, indisputably, is not ascribable to any of these exceptions to the Rule of equality of opportunity in the matter of public employment. In other words, the Constitutional Scheme does not envisage appointment through campus recruitment / campus interview against any office under the State; nor any decision of the Apex Court has been brought to our notice, which has taken that view. On the other sqp /vss 32 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc hand, the consistent view of the Apex Court, is that, wide publicity of the process, its transparency and fairness is the hallmark of equality of opportunity in the matter of public employment. Thus, the inviolable right enshrined in Article 16 can be secured and consumated only by giving wide publicity to invite applications from "all" eligible candidates.
The selection process, limited to the students from specified institutes, is bound to be replete with the element of arbitrariness; and antithesis to the right of equality of opportunity in the matter of public employment -
which must be fair, just and equitable. Borrowing the expression of the Apex Court - one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.
22. Indeed, even in the case of Upendra Singh (supra), the Court was required to consider the question in the context of appointments made on adhoc basis without following prescribed procedure and inspite of the ban imposed by the State Government in that behalf.
Nevertheless, the Court has examined the sweep and mandate of Articles 14 and 16 of the Constitution of India, in particular, which guarantees right of equality of opportunity to all qualified and eligible persons in the matter of public employment.
23. The importance of occupying public posts and in particular, right to equality has been dealt with in the case of Indira Sawhney (supra) sqp /vss 33 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc in paragraphs 644 (6) and 645(7) which have been extracted in paragraph 41 of the decision in Umadevi's case (supra). The State is not only expected to resort to fair procedure in the matter of appointment against public posts, but is expected to conform to its constitutional obligation of not discriminating or depriving the citizens of this Country of equal opportunity in the matter of public employment and including in making provision for the weaker segments of the Society.
These are the clear and binding imperatives to be observed by the State in the matter of public employment, as envisaged by Articles 14 and 16.
24. The argument of administrative expediency or departure of the norm in the name of enhancing professionalism and value addition, by making appointments through campus recruitment, is not available to the State. Those factors are and ought to be subservient to the fundamental rights of equality guaranteed to all the citizens similarly placed and more particularly possessing requisite qualification and eligibility for being considered in the matter of public employment. That guarantee is far superior and intended to do justice- social, economic and political and also to provide equality of opportunity. This right, as enshrined in Article 16, negates the argument of expediency and business compulsion even if the stated activities of the State or Instrumentalities of the State are commercial ventures. The sqp /vss 34 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc professionalism in business does not come only by appointing "freshers"
from premier selected institutes, by resorting to campus recruitment.
There is no guarantee that all high ranking students from such institutions would do better in practice, albeit in relative terms. They may have initial advantage of wide exposure to the latest gadgets and techniques of business. Those skills and techniques, however, can be acquired even by others in due course after being appointed in the public posts by undertaking refresher courses suited to the need of the business activities to be handled by them. Further, there is also no guarantee that the students of premier institutions would not end up in leaving the organisation sooner or later on finding better pastures elsewhere. The attrition rate at senior managerial positions is certainly high in private sector, which is a well known fact.
25. The rights of multitude aspiring unemployed candidates or candidates wanting to do career progression, are far higher and superior rights than the policy of the PSBs to follow best practices of the private sector for enhancing professionalism and make profits. Indubitably, the public sector undertakings must do well - as it is its obligation being trustees of public funds and interests. But, that does not allow it to resort to the same methods and tactics "in every respects" as that of the private sector, in the name of autonomy, thereby trampling the sqp /vss 35 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc fundamental rights guaranteed to the citizens of equal opportunity in the matter of public employment. As per the constitutional scheme, the State is under obligation of delivering social and economic justice to all sections and providing equal opportunity to all. The State must arrange its affairs and resources to subserve the common good. It is no obligation of the State to "patronage" select few institutions by providing employment to their students.
26. As aforesaid, if the State or instrumentality of the State intends to upgrade the level of efficiency and performance of its officers, may utilise the expertise of professionals and including premier institutions by conducting refresher and guidance courses about the new business techniques and latest applications for its officers. In other words, the State must resort to HR initiatives for upgrading the proficiency and efficiency of its officers rather than finding out easy solution of appointments to public posts through campus recruitment. There is no guarantee that favouritism and other malpractices will not be the buzzword in that dispensation, keeping in mind the high number of public posts and employment market of the public sector undertakings in India. That may lead to the inevitable problem noticed by the Apex Court resulting in "Spoil Systems", in Upendra Singh (supra).
sqp /vss 36 of 69
::: Downloaded on - 09/06/2013 19:47:12 :::
wp-l-2825.2012(J).doc
27. Notably, there is no empirical data that all the organisations - be it private or public sector undertaking - who have resorted to method of campus recruitment of freshers have always yielded better profits or that those persons were instrumental in any turn around plan or success of the organisation. The success of any business organisation essentially, is linked to strong leadership, planning, organising, execution and HR initiatives taken by it. Further, new business methods and techniques can be acquired by consulting professionals of high order, which module can be then executed under proper supervision of the experts.
It is in public domain that even without resorting to the method of campus recruitment, the public sector banks, after liberalisation of the national economy and until formulation of the impugned policy in 2009, have been able to successfully compete with the private sector and also recorded substantial profits. That was because of the logistical advantage PSBs have and the abiding faith of the stakeholders in them
- being public sector undertakings. The PSBs have huge reputation about its fair business tactics. In other words, it is not as if only by resorting to campus recruitment since 2009, the PSBs have started doing better than before. Assuming that the public sector undertakings have been benefited to some extent because of campus recruitment, that argument cannot be the basis to trample the fundamental rights of sqp /vss 37 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc the citizens of equality of opportunity in the matter of public employment guaranteed by Articles 14 and 16 of the Constitution of India.
28. The other option, which may be a better option and also in conformity with the fundamental rights guaranteed under Article 16 of equality of opportunity in the matter of public employment, is to provide higher benchmark of qualification and eligibility at the selection stage itself. Suffice it to observe that the justification offered by the respondents in support of their policy of appointments of direct recruits through campus interview, in our opinion, is untenable and impermissible as per the constitutional scheme. That policy is founded on assumptions. In absence of any empirical data in support thereof, it is nothing but presumptuous.
29. Indeed, the respondent bank may have stated on affidavit that all possible care and caution is taken while selecting the institutions/colleges from where the students would be considered for campus recruitment. However, this argument clearly ignores the contemporary situation that large number of Indian students are studying abroad for acquiring higher qualifications. The institutes in foreign countries are no less than any of the specified premier institutions in India. Those students either have gone abroad by choice or because of necessity due to not getting admission in the premier sqp /vss 38 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc institutions/colleges in India. Even these students will be denied equal opportunity in the matter of public employment. The argument that other candidates are free to compete for the remaining public posts to be filled by public advertisements, cannot be any justification to abridge the fundamental right enshrined in Article 16 of equality in the matter of public employment. The hallmark of equality of opportunity, is not of the marks obtained in the qualifying examinations/degrees or having pursued studies in specified institutions, but of opportunity to compete for public employment to one and all similarly placed possessing minimum qualification for eligibility to be considered for appointment.
30. It is indisputable that the College and University ranking reckons the factor of its empanelment for campus recruitment or placements in various successful organisations. Such Colleges are given higher rating. Resultantly, there will be undue competition between the institutions to get empanelled with the respondent bank and other PSU for campus recruitment. That may give rise to all kinds of situations and unfair means at both ends, resulting in a situation of "Spoil System" as warned by the Apex Court in the case of Upendra Singh (Supra).
31. Suffice it to hold that when the Constitution guarantees fundamental right to its citizens, of equality of opportunity in the matter of public employment, it becomes the corresponding duty of the State sqp /vss 39 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc and Instrumentalities of the State to uphold and deliver that right by giving equal opportunity to all citizens. That is the constitutional need and duty of the State and the Instrumentalities of the State. Neither the Government of India nor the respondent bank can turn nelson's eye to that obligation on the argument of expediency and administrative convenience of the PSBs.
32. We would now turn to the recruitment policy of the Respondent Bank. According to the Respondents, it is the outcome of the directives issued by the Government of India. The first such directive pressed into service is dated 19th September, 2001. The same reads thus:
"F. No. 5/1/6/2001-1R Government of India Ministry of Finance Department of Economic Affairs (Banking Division) IR Section New Delhi, dated the 19th September, 2001 The Chief Executives of all the Public Sector Banks Recruitment in Banks.
I am directed to the announcement made by the Hon'ble Finance Minister regarding abolition of Banking Service Recruitment Board and providing greater evidence to bank managements in forming their own recruitment strategy and implementing dependable to Bank prompt.
Banks have already been advised to take steps for closure of the BSRBs as early as possible. It has now been decided that each bank may frame its own recruitment strategy with approval of its board, to meet his future requirements.
sqp /vss 40 of 69
::: Downloaded on - 09/06/2013 19:47:12 :::
wp-l-2825.2012(J).doc
However, while framing such strategy, Bank may be guided by the following:
1. The recruitment policy should be transparent.
2. The process of selection should be just, objective and unbiased in all aspects and provide equal opportunity to all eligible candidates.
3. Reservations in posts for SC, STs, OBCs, Ex-
servicemen, Disabled, etc. With concessions in eligibility norms as laid down by the Government of India from time to time should be strictly followed.
4. There should not be any change with regard to minimum/maximum age criteria, educational qualifications, as regards workmen employees and Probationary Officers.
However, banks
ig may decided the educational
qualifications and experience as well as maximum age in respect of specialist officers to be appointed in officers' cadre.
5. The system should be economical and fee charged from the candidates should be reasonable.
6. Candidates belonging to SC/STs, etc. May be provided the same concessions in fee and cut-off marks to which they are entitled to at present.
7. In the selection committees set up for interviews, due representation should be given to the belonging to SC/STs and minority communities.
8. The recruitment policy should not neglect with rural background areas or from weaker sections of the society.
9. The recruitment should be need based and in any case it should not be made to fill up the vacancies caused due to voluntary retirement scheme. As advised in this office letter No. 4/8/7/2001-IR dated 26.4.2001 the recruitment should be made strictly as per Manpower Plan as approved by the Board of Directors of the Bank.
10. The should conform to the instructions issued by Government/Reserve Bank of India from time to time on creation of posts/filling up of vacancies/staff growth.
sqp /vss 41 of 69
::: Downloaded on - 09/06/2013 19:47:12 :::
wp-l-2825.2012(J).doc
A copy of the recruitment policy framed by the bank may be sent to Government as and when by the Board.
Yours faithfully, Sd/-
(U.K.SINHA) JOINT SECRETARY (IF) Present nominee Directors on the Boards of Public Sector Banks.
Copy to: Government nominee Directors on the Boards of Public Sector Banks Sd/- (U.K.SINHA) JOINT SECRETARY (IF)"
(emphasis supplied)
33. On a bare perusal of this communication, there is nothing to indicate that the direction given by the Government of India to the PSBs was to resort to appointment by campus recruitment method. On the contrary, this communication reiterates that the recruitment policy of PSBs should be transparent, objective and unbiased in all respects and must provide for equal opportunity to all eligible candidates It also refers to the obligation to ensure reservation and give benefits to the deserving persons and including to the rural background areas or weaker sections of the society.
34. Reliance is also placed on recruitment policy of the Respondent Bank stated in the memorandum to Board Committee of the Respondent Bank dated 28.10.2002. The same reads thus:
sqp /vss 42 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc "RECRUITMENT POLICY IN OUR BANK
1. In pursuance to the Government of India communication dated 19th September, 2001 advising the Banks to formulate their own Recruitment Policy in the wake of abolition of Banking Service Recruitment Boards (BSRBs), a document containing the broad outline of the strategies to be followed by the Bank on Recruitment matter, was prepared and placed before the Board it its meeting held on 23rd August, 2002 vide Agenda Item No. BM/06/2002-03/3.6 (Tag 'A'). The Board, however, formed a Committee consisting of four members Shri. V. N. Saxena, Executive Director, Shri. R. Gandhi, RBI Nominee Director, Shri Deepak Singh, Director and Shri Y. P. Mone, Director with the undersigned as the convener, and advised that the said Committee should look into the Recruitment Policy document and a report thereon be placed before the Board after one month.
2. In furtherance to the above direction of the Board, the said Committee in its meeting held on 8 th October, 2002 examined the draft of the Recruitment Policy so prepared and placed before the Board. The report of the said Committee is enclosed (Tag 'B'). The Recruitment Policy document which is duly revised by incorporating the observations of the Committee in the relevant provisions, is also enclosed (Tag 'C').
3. Board is, therefore, requested to accord its approval to the Recruitment Policy as outlined in the Annexure (Tag 'C').
(S. K. Gupta) GENERAL MANAGER (PRS) Encls: a/a RECRUITMENT POLICY IN OUR BANK
1. Vide communication F/S/1/6/2001-IR dated 19th September (Tag 'A') Government of India advised the Banks to take suitable expeditious steps to formulate their own Recruitment Policy which subserves their requirements in line with the strategic Business plans. It has also been stated that such recruitment strategies that would be framed by the Banks should be in conformity with certain basic principles which are enumerated therein. This communication was placed before the Board in its meeting dated 27th October 2001, for its information.
sqp /vss 43 of 69
::: Downloaded on - 09/06/2013 19:47:12 :::
wp-l-2825.2012(J).doc
2. The recruitment of personnel in the bank is broadly guided by the guidelines received from Government of India, Ministry of Finance, alongwith Corporate Objectives which provide indicative insight for need and necessity on this score from time to time and in tandem with the management's declared policies, philosophies and prerogatives etc. The policy is drafted keeping in mind the above as also the corporate objective.
3. While for recruitment of Probationary Officers in Scale 1 and Clerical staff the Government of India guidelines in regard to age, qualification, recruitment procedure etc. received from time to time and which were hitherto followed by BSRBs have been incorporated in the Recruitment Policy framed by us, for the recruitment of Officers in Scale II and above in Mainstream and all Officers in Specialist Categories where Government of India (GOI) advised that bank may decide the same due consideration has been given on age, qualification, experience, recruitment through campus interview etc. Depending upon the requirement of the specific post/category.
4. Having regard to the need and necessity of the business requirement, the provisions of this policy, to the extent not governed by the guidelines of Government of India/RBI/IBA will be amended/modified from time to time administratively with the approval of the Chairman & Managing director where after the same will be placed before the Board for its information. However, the amendments necessitated on account of amendment/modification in the guidelines of Government of India/RBI/IBA will be adopted with the due approval of the Board.
5. Accordingly, and also in compliance with the Government directives stated in para 1 above, a document has since been prepared containing the broad outline of the strategies to be followed by the Bank on Recruitment matters as per enclosure (Tag 'B').
6. Board is, therefore, requested to accord its approval to the Recruitment Policy as obtained in the Annexure (Tag 'B' and for delegating the powers to the Chairman and Managing Director for making modifications/amendments etc. therein as stated in para 4 above.
(S. K. GUPTA) GENERAL MANAGER (PRS)"
sqp /vss 44 of 69
::: Downloaded on - 09/06/2013 19:47:12 :::
wp-l-2825.2012(J).doc
35. Reliance is then placed on the communication issued by the Joint Secretary (BO & A) Ministry of Finance, Department of Economic Affairs (Banking Division) dated 22nd February, 2005. The same reads thus:
"EXHIBIT "G"
AMITABH VERMA Ministry of Finance
Jt. Secretary (BO & A) Department of Economic
Tel. 23342287 (Banking Division)
Jeevan Deep"
10, Parliament Street,
New Delhi 110001.
D. O. No. 7/48/2004-BOA 22nd February, 2005.
Dear Shri Singh,
As you are aware, the Finance Minister in his budget speech had mentioned that the public sector banks (PSBs) would have full managerial ......... The National Common Minimum Programme of the Government of India, inter alia, provides that the PSBs will be given full managerial autonomy. In fact, with the opening of the economy and growing globalization, the PSBs are now, more market driven. The banking sector is increasingly becoming seamless to compete with the best of the private / foreign banks. Consequently, the PSBs have to function with total autonomy and operational flexibility at par with their global counterparts.
11. It was in this context, among others, certain measures proposed for managerial autonomy for the PSBs, were discussed in the meeting of the Hon'ble FM with Chief Executive of the PSBs held recently on 28.1.2005 at New Delhi. Based on the discussions in the above said meeting, we have since finalized the Managerial Autonomy for the Public Sector Banks, the details of which are given in the enclosed Annexure, for your information, guidance and further action by your bank.
With regards, Yours sincerely, sd/-
(AMITABH VERMA)
ANNEXURE to the above letter
sqp /vss 45 of 69
::: Downloaded on - 09/06/2013 19:47:12 :::
wp-l-2825.2012(J).doc
Managerial Autonomy for Public Sector Banks Background:
1. The functioning of commercial organizations in most developed jurisdictions is marked by a separation of ownership and management. With the opening up of the Indian economy and growing internationalization, the Public Sector Banks (PSBs) have now to compete with the best banks in the region.
Consequently, there is a vital need to provide a level playing field for PSBs. This can be achieved by allowing them operational flexibility and functional autonomy on lines comparable with their global counter-parts and those in the private sector in India.
2. Managerial autonomy for Public Sector banks would imply that their Board of Directors is vested with the freedom and responsibility for deciding managerial issues within the broad framework of Government policies. There should be a clear demarcation between the roles of owners, the Board of Directors and the executive management. The present situation, where even on purely managerial and routine administrative issues, banks are required to operate under Government guidelines should be replaced by a framework where all such issues are driven by policy prescriptions of the Board of Directors. The objective is to ensure that Banks function on sound principles of corporate governance. The key issue is to design a framework in which Government will experience its ownership rights without transgressing into the management functions of the PSBs. Hence, a framework for managerial autonomy for the PSBs has been drawn up clearly defining the role of the Government and providing the requisite flexibility to the management of the banks in respect of their operations.
Role of the Government
3. The Government will continue to exercise the following functions in its capacity as the owner:
i) Appointment of the Chairperson & Managing Director and the Executive Directors in the PSB.
Government has formulated overall HR policy guidelines to strengthen professionalism and ensure, greater consistency in managerial capability across Banks. The guidelines will provide for clear criteria, a transparent sqp /vss 46 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc process and a deeper and wider base of selection to ensure a 3-5 year term for CMDs and Eds.
ii) Appointment of eminent persons as Non-
official Directors based on the ?it and proper criteria, from various interest groups / fields as provided in the statute.
For this, a talent pool may be drawn up by Government / RBI.
iii) Appropriate control at the macro-level and regular review of the performance / achievement of the bank on important pre-determined parameters fixed in consultation with the Board of Directors of the Bank.
4. The Government now owns 100 percent equity in only 4 of the 19 Nationalized Banks. The existence of private shareholders in the PSBs imposes a responsibility on Government, as the majority shareholder, to enhance shareholder value and protect minority shareholders' rights. The Government will create an environment conducive for the PSBs to raise additional funds from the market for meeting the Base II requirements and to respond effectively to emerging competitive measures.
Role of Board of Directors of Public Sector Banks
5. Existing criteria for operational autonomy Operational autonomy, as indicated in para 6 below, is already available to banks that fulfil the following criteria:
(ci) Earned net profits in the past three years (cii) Capital Adequacy Ratio (CAR) of more than 9 per cent as on 31.03.2001.
(ciii) Net NPA level below 9 per cent of net advances. (civ) Minimum owned funds of Rs. 100 crore."
6. Existing Areas of Autonomy:
At present, Public Sector Banks enjoy operational autonomy in the following areas:
19. Placement of personnel in overseas branches.
20. Promotion to senior executive grades i.e. Up to the level of Gms. In particular, banks are free to draw up their own policy for creation, abolition, upgradation of posts and 'Fast Track' promotions, upto Deputy General Managers.
21. Out-of-turn promotions.
sqp /vss 47 of 69
::: Downloaded on - 09/06/2013 19:47:12 :::
wp-l-2825.2012(J).doc
22. Deputation of officers, lateral induction of officers on contract basis and lateral mobility of officers within the bank.
23. Prescribing minimum educational qualifications for subordinate staff.
24. Fix requirement of rural postings for bank officers.
25. Campus recruitment to attract talent.
26.Transfer and posting of all staff and officers upto General Manager level.
7. Areas of further operational autonomy to the Board of Directors now proposed:
As per part of good corporate governance the executive management comprising Whole Time Directors and the top management team should be directly responsible to the Board of Directors. The Boards of PSBs will enjoy freedom to carry out their functions efficiently and without impediment, subject to statutory requirements, Government policy prescriptions and regulatory guidelines issued by RBI from time to time Banks will be allowed freedom of action in the following areas:
(i) Pursue new lines of business as part of overall business strategy.
(ii) Make suitable acquisitions of companies or businesses, close / merge unviable branches, open overseas offices, set up subsidiaries and exit a line of business.
(iii) Decide all Human Resources issues relating to the Bank including staffing pattern, recruitment, placement, transfer, training, promotions, pensions etc.
(iv) Prescribe standards for categorization of branches, based on volume of business and other relevant factors.
(v) Prescribe essential academic qualifications, minimum qualification standards and modalities of promotion / recruitment to various categories.
(vi) Undertake visits to foreign countries to interest with investors, depositors and other stakeholders.
(vii) Lay down policy of accountability and responsibility of Bank officials and take action against erring Bank officials in conformity with such policy. The policy framework should provide for stringent punishment for all malafide actions but, at the same time, recognize that bonafide errors do occur while making decisions relating to commercial judgment.
8. Further autonomy / powers to stronger banks exhibiting good performance:
In the case of banks which, as on 31.03.2004, fulfil the following criteria:
sqp /vss 48 of 69
::: Downloaded on - 09/06/2013 19:47:12 :::
wp-l-2825.2012(J).doc
26. Earned net profits over the last three years.
27. Capital Adequacy Ratio of 9 percent or more.
28. Net NPAs less than 4 percent, and
29. Minimum owned funds of Rs. 300 crores.
As a part of the overall HR policy guidelines, it is now proposed to allow the Board of Directors to exercise, the following additional powers and functions:
(i) Framing HR policies and procedures. Boards will have the flexibility to frame their own HR policies and procedures for recruitment including eligibility criteria, mode of selection, levels of entry etc.
(ii) Creation of additional posts of General managers Boards would be authorized to create additional posts of General managers based on need. The policy guidelines will also provide for mobility at the General manager level between Banks.
(iii) Decisions on remuneration and compensation of officers and staff. The overall pay structure of officers and staff is now determined after industry-wide negations. The Boards would now be free to sanction differential pay, linked to performance, within the pay scales decided after the negotiations. Such incentives are intended as tangible recognition for a small proportion of personnel in each scale who are genuinely outstanding performance. Specialized cadre can also continue to be provided differential remuneration. This will help banks attract talented individuals in operational areas like marketing, information technology, risk management and credit. Such differential remuneration will be subject to an overall ceiling for establishment expenditure.
(iv) Decisions on the amount of contribution to be made to the Staff Welfare Fund. The existing guidelines do not make any distinction between the size of different banks, their varying number of employees and their levels of performance.
The guideline prescribing a uniform contribution of 3 per cent of the bank's Net Profit or a maximum of Rs. 10 crore will be replaced by an upper ceiling on the contribution to be made per employee.
9. With the globalization of the Indian Economy and the advent of private banks that are more nimble-footed and have access to a wealth of technology and managerial resources, Public Sector Banks have to be better equipped with greater operational flexibility to transact business more efficiently. Government, as the principal stakeholder, wished to make room for such autonomy and provide the Public Sector Banks sqp /vss 49 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc with a level playing field. It is in this context that the managerial autonomy features as aforementioned have been designed." (emphasis supplied)
36. No doubt, this communication refers to the National Common Minimum Programme of the Government of India and recognises that with the opening of the economy and growing globalization, the PSBs are now more market driven. In view of increasingly becoming seamless to compete with the best of the private/foreign banks it was essential to grant total autonomy and operational flexibility at par with their global counterparts. On that basis, the recruitment policy of the Respondent Bank has been formulated as amended/adopted by its Board up to 5th March, 2009. The amended recruitment policy permits appointments through campus selection in addition to the selection procedure through advertisement. As regards the campus selection, the clause contained in the said policy reads thus:
"Through Campus Selection:
Notwithstanding what is stated above, the management, at its discretion, can resort to campus recruitment through Indian Institute of Management, reputed colleges affiliated to Universities recognized by University Grants Commission / reputed institutions, etc. The methodology for selection through campus recruitment, including Selection Committee / Agency will be decided by the Bank with the approval of the Board of Directors, from time to time."
37. The conclusion of the recruitment policy, given in Chapter VI reads thus:-
sqp /vss 50 of 69
::: Downloaded on - 09/06/2013 19:47:12 :::
wp-l-2825.2012(J).doc
"CHAPTER VI
CONCLUSION
This Recruitment policy aims to sub-serve the basic objective of acquiring the right personnel with right qualifications and experience at right time and right place. It commits itself to the Organization's mission to enrich the human resources by motivating them through providing growth opportunities, improving employee loyalty to the organization on one hand and by safeguarding the societal interests through serving the community by absorbing the weaker sections who are otherwise deserving to be appointed in the organization, on the other."
(emphasis supplied)
38. This policy was approved by the Board of Respondent Bank. The approval resolution passed by the Board of Directors on 28th March, 2009 reads thus:
"13M/549/2008-09/17/2.37 Mtg. Dt : 28.03.2009 Recruitment of officers on Contractual Basis through Campus Selection Mode.
A Memorandum seeking in principal approval for initiating the campus recruitment of key talents on contractual basis as per the broad criteria outlined therein, as a one time measure and beyond the provisions of Recruitment Policy and to authorise the CMD to decide the modalities, actual terms/conditions etc for the said process, as detailed in the Agenda, was placed before the Board.
APPROVED RESOLVED THAT proposal for in principal (sic principle) approval for initiating the campus recruitment of key talents on contractual basis as per the broad criteria outlined therein, as a one time measure and beyond the provisions of Recruitment Policy and to sqp /vss 51 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc authorise the CMD to decide the modalities, actual terms/ conditions etc. for the said process, as detailed in the Agenda, be and is hereby APPROVED."
_________________________________________________ (emphasis supplied)
39. On the basis of this approval to the amended recruitment policy, "which was intended to be only one time measure and to make those appointments on contract basis", the appointment process through campus interview to fill up the regular posts earmarked for direct recruits, has been resorted to on year to year basis since 2009. That is in transgression of the limited approval given by the board of Respondent Bank. The chart showing the comparative position of recruitment of officers through advertisement and by campus mode done by the Respondent Bank from time to time on that basis, reads thus:
"Comparative Chart Showing Recruitment of Officers Through Advertisement and Campus Mode Year Intake of Officers Intake of Officers Through Through Campus Advertisement 2009-10 858 20 2010-11 1155 82 2011-12 17 98 1012-13 1538* 238* Total 3567 438 sqp /vss 52 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc * Result of 1000 Probationary Officers are to be declared shortly.
** Appointment letter not issued to 139 selected candidates which comprises 50 Agriculture Finance Officers and 89 MBAs/CAs through campus mode in view of the Court's order."
40. To start with the campus interview was done only from amongst 7 Colleges/Institutions in the year 2009, from 4 Chartered Accountant Institute Centers and 21 other Colleges/Institutions in the year 2010. In the year 2011, the campus interview was done in 23 Colleges/Institutions and in the year 2012, from 19 Colleges/Institutions and 9 centers of Indian Chartered Accountant Institute. The candidates selected in the year 2012 from different Colleges/Institutions indicated in the chart furnished to the Court, which reads thus:
"LIST OF INSTITUTES (MBA) WHERE CANDIDATES WERE SELECTED -2012
1 NMIMS, Mumbai 2 NIBM, Pune 3 Lal bahadur Shastri Institute of Management, Delhi 4 International Management Institute, New Delhi 5 BIMTEC 6 IIFT 7 Symbiosis Pune 8 IBS Hyderabad 9 IMIS Bhubaneswar 10 Jaipuria Institute, Lucknow 11 Mukesh Patel School of Technology Engagement & Eng.
12 Sinhagad Pune
13 KIIT Bhubaneswar
sqp /vss 53 of 69
::: Downloaded on - 09/06/2013 19:47:12 :::
wp-l-2825.2012(J).doc
14 Alliance University, Hyderabad
15 Prestige Institute of Management, Indore
16 IIPS, Indore
17 IEM, Kolkata
18 VIT, Vellore
19 University of Calcutta
CA INSTITUTES - 2012
SR. CENTRE
NO.
1 ICAI, CHANDIGARH
2 ICAI, KANPUR
3 ICAI, JAIPUR
4
5
ICAI, INDORE
ICAI, HYDERABAD
6 ICAI, MUMBAI
7 ICAI, AHMEDABAD
8 ICAI, DELHI
9 ICAI, CHENNAI
"LIST OF INSTITUTES (AFO) WHERE CANDIDATES WERE SELECTED - 2012 1 Acharya N. G. Ranga Agriculture University Hyderabad 2 G B Pant University of Agri. & Tech. Pantnagar 3 Jawahar Lal Krishi Viswavidyalaya Jabalpur 4 Punjab Agriculture University Ludhiana 5 Allahabad Agriculture Institute Allahabad 6 Acharya Narendra Deo Krishi Viswavidyalaya Faizabad 7 Birsa Agr. University Ranchi 8 Rajmata Vijayaraje University Viswa Vidyalaya Gwalior 9 Choudhary Charan Singj Haryana Agri. University Hissar 10 Mahatma Phule K V. Rahuri (M. S.) sqp /vss 54 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc NORTH EAST INSTITUTES 2012 SN. INSTITUTE 1 ICFAI, TRIPURA 2 NAMCHI GOVT. COLLEGE KAMRANG NAMCHI, SIKKIM 3 SIKKIM MANIPAL INSTITUTE OF TECHNOLOGY, EAST SIKKIM"
41. Notably, most of the Colleges / Institutions from where campus recruitment has been done are private colleges. This gives credence to the theory of possibility of pick and choose approach adopted in empanellment of the stated colleges / institutions, albeit after scrutiny of applications by a committee set up by the respondent - Bank. A grave element of arbitrariness is certainly introduced in the empanellment procedure. Further, it is evident that equal opportunity to "all" similarly placed candidates in the matter of public employment is far to seek, no matter the insignificant number of appointments made through the mode of campus interview, i.e., only 12.27% out of total intake of officers during the relevant period.
42. The candidates, who apply pursuant to the advertisement issued by the State or Instrumentalities of the State, do it with full knowledge and realisation that they have to serve the common man by discharging their duties in public office. There is no reason to presume that they will be less efficient or not innovative in the business methods, if given the sqp /vss 55 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc opportunity. Further, even if a candidate selected through campus recruitment may be relatively high ranking and had pursued his studies in a premier Institution/College, being a fresher, he may have to fall in line with the same existing set up, policy issues and infrastructure of the organisation. Indubitably, no empirical data has been collated nor produced before us to indicate that the candidates selected in the campus interview process are far superior in every respects and have consistently secured exceptionally high scores than the "best candidate"
in order of merit selected pursuant to advertisement process. In that sense, the selection of candidates through campus interview is completely subjective. Objectivity is ensured by reckoning the scores secured by the competing candidates who participate in the written examination and viva voce, as the case may be, at the same time, pursuant to the public advertisement process. To put it differently, the success of the PSBs would largely depend on the political leadership, federated governance, shared enterprise frameworks and HR initiatives and not because of the candidates selected from few empanelled colleges/institutions through campus interview. Moreover, employment of such candidates is no guarantee that the efficiency and performance of the organisation will be enhanced significantly. Then, certainly, that option is not good enough, so as to trample the fundamental right of equality of opportunity in the matter of public employment, guaranteed sqp /vss 56 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc to the persons possessing minimum prescribed qualification. On the other hand, the State and Instrumentalities of the State are not only under Constitutional obligation to secure justice - social & economic but also to deliver equality of opportunity in the matter of public employment to all similarly placed persons.
43. By resorting to campus interview process, as in this case, 12.27% of vacancies are filled in by that mode. To that extent, the equality of opportunity in the matter of public employment guaranteed to other candidates similarly qualified and eligible for being considered from other parts of India not connected with the stated institutions, is lost forever.
44. We, therefore, hold that in the matter of public employment, as per the Constitutional scheme, the mandate is to invite applications from all the eligible persons by giving wide publicity, without exception.
The fact that other State Instrumentalities have resorted to campus interview mode of appointment in the past, can be no basis to legitimise that process; which, inevitably, tramples the fundamental rights of otherwise qualified and eligible citizens for being considered against the public posts alongwith similarly placed persons.
sqp /vss 57 of 69
::: Downloaded on - 09/06/2013 19:47:12 :::
wp-l-2825.2012(J).doc
45. Indeed, as observed by the Apex Court in the case of Umadevi (3) (supra) and Upendra Singh (supra), it may be possible for the State or the Instrumentalities of the State to appoint persons through campus recruitment / interview on "contract basis" for a limited tenure;
but when it comes to regular and permanent appointment against the public posts, it must abide by the Constitutional scheme of inviting applications by giving public advertisement and wide publicity and providing equal opportunity to all similarly placed persons for being considered in the matter of public employment.
46. Thus, the argument of liberalisation, autonomy or continual competition with the private sector; tapping of candidates from specialised field or better qualified candidates through campus recruitment; the candidates selected through campus interview are a class unto themselves; that method has a reasonable nexus with the object sought to be achieved for absorbing talented candidate from reputed educational institutions and utilising their expertise to compete and match the performance of private and foreign banks, all these can be no basis to uphold the impugned action of the respondents. For, the successive pronouncements of the Apex Court have reaffirmed that in the matter of public employment, it should be done only by inviting sqp /vss 58 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc applications from the public at large by giving wide publicity and issuing public advertisement.
47. The petitioners had also placed reliance on the provisions of Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 to contend that the same mandates that the State and the Instrumentalities of the State should communicate the vacancy position to the Employment Exchange from time to time to accomplish the avowed object of the said enactment. The respondents, on the other hand, would contend that the provisions of the said enactment are directory and even if it were to be considered as mandatory, except taking recourse to prosecution and penalty for breach thereof, nothing more can be done. (See Dena Nath & Ors. vs. National Fertilisers Ltd. & Ors.12, Nagendra Chandra & Ors. vs. State of Jharkhand 13).
Considering the view taken by us, it is unnecessary to burden this judgment with the argument under consideration except to observe that indisputably the vacancies for direct recruits, filled in by the respondent
- Bank through campus interview, were not notified to the Employment Exchange. If the law warrants action for this lapse, the same be initiated and taken to its logical end as per law.
12 (1992) 1 CLR 1 (SC)
13 (2008) 1 SCC 798
sqp /vss 59 of 69
::: Downloaded on - 09/06/2013 19:47:12 :::
wp-l-2825.2012(J).doc
48. The respondents have then placed reliance on the decision of the Apex Court in the case of Sarva Shramik Sanghatana (KV), Mumbai vs. State of Maharashtra,14 to contend that the judgment in Umadevi (3) (supra), should be considered in the context of the controversy before that Court relating to regularisation or non-regularisation of the temporary employees of the State. For the reasons already recorded, in our opinion, this principle pressed into service will be of no avail.
49. Reliance was also placed on the decision of the Apex Court in the case of Uttaranchal Road Transport Corporation & Ors. vs. Mansaram Nainwal,15 to contend that the ratio in the case of Umadevi (3) (supra), which commands that vacancies must be notified, relates to open recruitment posts, which are filled up quietly and without the open publication, which is contemplated by the very nature of the recruitment process and, therefore, it will have no application to the case on hand.
This argument does not commend to us. We have not only quoted the exposition in Umadevi's case (supra) extensively but also referred to other successive decisions of the Apex Court, which have restated the position that public posts must be filled by means no other than 14 (2008) 1 SCC 494 15 2006 III CLR 585 (SC) sqp /vss 60 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc advertisement. Else, it inevitably impinges upon the fundamental right guaranteed to the citizens of equality of opportunity in the matter of public employment.
50. Reliance was also placed on the decision in the case of M.Nagaraj vs. Union of India16, to contend that the doctrine of classification is read into Article 14 - equality of treatment - is an objective test. It is not the test of intention. Therefore, the basic principle underlying Article 14 is that the law must operate equally on all persons under like circumstances and every discretionary power is not necessarily discriminatory. We have already dealt with this aspect in extenso in the earlier part of this judgment and opined that abridgment of fundamental right of the citizens of equal opportunity in the matter of public employment cannot be whittled down in the name of better candidates are available to the Bank through campus interview.
51. Reliance was also placed on the decision of the Division Bench of our High Court in the case of Transport Union vs. Mumbai Port Trust17. The exposition in this decision is of no avail to the respondents.
16 (2006) 8 SCC 212
17 2009 Vol. 3 CLR 1007 (BOM) (DB)
sqp /vss 61 of 69
::: Downloaded on - 09/06/2013 19:47:12 :::
wp-l-2825.2012(J).doc
52. That takes us to the decisions of the other High Courts pressed into service by the respondents to justify its policy of recruitment through campus interview and the action taken on the basis of such policy.
Notably, none of these judgments refer to the decision or for that matter, the principle stated in Umadevi's case (supra). For that reason, the respondents vehemently contended that the exposition in Umadevi (3) (supra), be considered as relevant on its own facts. That contention, however, has been negatived by us. Therefore, it may not be necessary to elaborate on the decisions of other High Courts relied upon by the respondents.
53. We may, however, refer to the first decision of the Kerala High Court in the case of Federation of Central Government SC/ST Employees (Kerala) Kochi Refineries Unit, Cochin vs. Kochi Refineries Ltd.18. In paragraph 7 of the said decision, the Court took into account the pattern of mixed economy in which the State or the public sector enterprises exist side by side with private sector. It went on to observe that public sector enterprises now face stiff competition in the area of petroleum products and they require today sufficient tools in their armory to withstand threat of multinational and other private 18 2006 Lab. I.C. 2592 sqp /vss 62 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc companies. Multinational and other private companies employ best talents who come out of educational institutions of repute like IITs, IIMs, etc. with attractive offers even before they pass out of their institutions through the method popularly known as campus recruitment. The Court in paragraph 9 then went on to observe that persons who are recruited through campus recruitment form a class by themselves.
Classification of those persons as a group, keeping in view the administrative exigencies and need to enhance efficiency, this regime cannot be said to be arbitrary or violative of Article 16(1) of the Constitution of India. Further, campus recruitment has a reasonable nexus to the object sought to be achieved. It further held that classification based on some qualities or characteristics of the persons grouped together cannot be found fault with provided those qualities have a reasonable nexus to the object sought to be achieved. Further, guarantee of equality does not imply that same recruitment rules should be made applicable to all persons inspite of differences in their circumstances and conditions. When State indulges in business or in commercial venture and there is cut throat competition new and novel methodologies have to be adopted lest they may lose in the race which will be against national interest. Broadly, on this logic, the Court upheld the action of the public sector undertaking of taking recourse to campus recruitment, as a permissible method. With utmost humility at our sqp /vss 63 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc command, we disagree with this logic. No doubt, the State and the Instrumentalities of the State, are required to engage in business or any commercial venture and have to face stiff competition with private sector. However, that does not mean that they would get licence to trample the fundamental rights guaranteed to the citizens of this country by the Constitution of India. As observed by the Apex Court in Kesavananda Bharati vs. State of Kerala19, even the Parliament or the State Legislature in this country cannot transgress the basic feature of the Constitution, namely, the Principle of Equality enshrined in Article 14 of which Article 16 (1) is a facet. The private sector has no constitutional obligation towards upholding of the justice-social, economic and political and adherence to equality of status and opportunity to all the citizens of the country, unlike in the case of State and the Instrumentalities of the State. The State Authorities have to strive to maintain and preserve the well cherished rights guaranteed by the Constitution of equality much less of opportunity in the matter of public employment. Notably, the Constitution recognises that it is the obligation of the State to provide work to all the citizens within the limits of its economic capacity and development for securing the right to work, as per Article 41 of the Constitution of India. Public posts or public employment can be equated with the material resources of the 19 (1973) 4 SCC 225 sqp /vss 64 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc community, which ought to be distributed in a fair and equitable manner to subserve the common good, by the State Authorities. Suffice it to observe that for the reasons already indicated in the earlier part of the judgment, we respectfully disagree with the opinion of the Division Bench of the Kerala High Court referred to above.
54. Another decision relied upon by the respondents of the learned Single Judge of the Madras High Court in the case of Chennai Petroleum Employees Union vs. General Manager, HR, Chennai Petroleum Corporation Ltd20, which essentially follows the principle stated in the above stated decision. As a result, even this decision will be of no avail.
55. Reliance is then placed on the decision of the Division bench of the Patna High Court in the case of Pravin Kumar vs. State of Bihar21.
This decision has been followed in the subsequent decisions of the Patna High Court in the case of Rajesh Roushan & anr. vs. State of Bihar22. The Patna High Court more or less reasoned out on the same logic as given by the Kerala High Court about administrative exigency for which the administration must be allowed some play in the joints 20 Writ Petition No.5554 of 2009 decided on 25.11.2010 21 Civil Writ Petition No.7200 of 2011 decided on 26.7.2011 22 Civil Writ Petition No.7616 of 2011 decided on 24.8.2011 sqp /vss 65 of 69 ::: Downloaded on - 09/06/2013 19:47:12 ::: wp-l-2825.2012(J).doc even though the appointments may not strictly conform to the constitutional norms. In that case, a peculiar situation was faced by the State Government due to large number of vacancies in the Electricity Board necessitating taking recourse to campus recruitment of the outgoing batch of the "Government Polytechnics in Bihar". In the peculiar facts of that situation, being emergent situation, the Court declined to entertain challenge to campus selection. For the elaborate reasons recorded in the earlier part of this judgment, we do not intend to traverse every reason given by Patna High Court, which is given without dealing with the dictum of the Constitution Bench of the Apex Court in Umadevi's case (supra).
56. Further, it is noticed that the decision of the Kerala High Court in the case of Federation of Central Government SC/ST Employees (Kerala) Kochi Refineries Unit, Cochin (supra), was carried in Appeal before the Apex Court being Civil Appeal No.4290 of 2007 and connected matters decided on 8.5.2008. However, the Apex Court dismissed the said appeal on the finding that the petition was not filed by any affected person and as and when affected person approaches the Court, the matter can be examined on merits. In other words, the order of the Apex Court does not result in upholding the opinion of the Kerala High Court so as to make the same binding precedent on this sqp /vss 66 of 69 ::: Downloaded on - 09/06/2013 19:47:13 ::: wp-l-2825.2012(J).doc Court. For the reasons already recorded, we are not inclined to accept the ground of administrative expediency, as a tangible ground for departing from the rule regarding the method of filling of vacant public posts to ensure that all citizens are provided with equality of opportunity in the matter of public employment.
57. The Petitioners' Counsel has justly relied on the dictum of the Constitution Bench of the Apex Court in the Ganga Ram vs. Union of India23, wherein the Court has observed the the State is legitimately empowered to frame rules of classification of securing the requisite standard of efficiency in services and the classification need not be scientifically perfect or logically complete. The Court then went on to observe that the classification, in order to be outside the vice of inequality, must be founded on an intelligible differentia, which on rational grounds distinguishes persons grouped together from those left out. The differences which warrant a classification must be real and substantial and must bear a just and reasonable relation to the object sought to be achieved. As is noted in the earlier part of this judgment, even the Parliament cannot legislate on the subject that would impinge upon the fundamental right of equality of opportunity in the matter of public employment. Secondly, no empirical data has been produced, to 23 1970 (1) SCC 377 sqp /vss 67 of 69 ::: Downloaded on - 09/06/2013 19:47:13 ::: wp-l-2825.2012(J).doc persuade the Court that the policy of filling up of public posts by resorting to campus interview method is imperative and has become indispensable. We are not impressed by the claim of the respondents that the said dispensation fulfills the tests of justness, fairness, reasonableness and having nexus to the object sought to be achieved.
In absence thereof, it is not possible to countenance the argument of the respondent - Bank that the distinction made by them of the class of candidates is real and substantial.
58. For the aforesaid reasons, the petition ought to succeed at least to the extent of declaring the stated recruitment policy of the respondent
- Bank dated 5.3.2009 as also the Circular issued by the Government of India dated 22.2.2005, which provides for recruitment of officers in the public sector banks against "permanent vacancies" on "regular basis" by resorting to campus recruitment / Interview method and not by inviting applications from public at large by issuing public advertisement, being illegal and unconstitutional. The respondents are directed to forbear from making any appointment against the permanent vacancies on regular basis by resorting to campus recruitment/Interview mechanism hereafter and if such appointment is made, the same will be non-est in law.
sqp /vss 68 of 69
::: Downloaded on - 09/06/2013 19:47:13 :::
wp-l-2825.2012(J).doc
59. Rule made absolute on the abovesaid terms with no order as to costs.
60. While parting, we may place on record that although the arguments were concluded on 5.12.2012 but, as both sides wanted to file written submissions, the judgment was reserved. Presumably, the parties filed their written submissions in the Registry after 13.12.2012, which, however, were placed before us by the Registry only on 29.1.2013.
(MRS.MRIDULA BHATKAR, J.) (A.M. KHANWILKAR,J.)
sqp /vss 69 of 69
::: Downloaded on - 09/06/2013 19:47:13 :::