Recruitment and

conditions of service

Article 309, 310 and 311 of the Constitution

Article 308. Interpretation

 In this Part, unless the context otherwise requires, the expression "State” does not
include the State of Jammu and Kashmir.

 General Clauses act1897 – State specified in the First Schedue to the Constitution
and includes - Union territory.

 308 vs 12 of the Constitution [narrower]

 309. Recruitment and conditions of
service of persons serving the
Union or a State

 Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons
appointed- to public services and posts - of the Union or of any State:

 Provided that it shall be competent for the President or such person as he may direct - affairs of the
Union,

 and for the Governor of a State or such person as he may direct in - affairs of the State,

 to make rules regulating the

 recruitment, and

 the conditions of service of persons appointed, to such services and posts until provision - made by or
under an Act of the appropriate Legislature under this article, and any rules so made shall have effect
 Recruitment :

 Any method – inducting a person – public service

• appointment
• Selection methods of
• Promotion recruitment
• deputation
Sharing of power between the
Legislature and Executive

Legislative
Executive power
power

Express law is laid down by or under

the Act – executive rulemaking is
subject to the law.
 Legal position of the Government
servant.?
“contractual or not”
Sankaranarayanan v State of Kerala (1971)
Q )- nature of power to regulate service conditions for
teachers (Govt and aided schools)
- Govt. order- retirement age 55 to 58 (amended the Kerala
Education Act. 1958)
- supersession of the earlier order Govt. reduced the age
back to 55 years.
- Petitioner – earlier order – understanding between the Govt
and servants – contractual obligation
SC – cannot be limited to contract . “status”
Moti Ram v North East Frontier
Railway (1964)

 - Rule 148(3). 149(3) – Railway Code

- Provided for termination of service of permanent employees by givem them notice for
a period mentioned in the rule
- Challenge on the Rule

Supreme Court – Rule invalid as it violated - 311

Whether executive power (73 or 53)
can surpass law made under 309

Katyani Dayal v Union of India

- Engineering dept . Of Indian railways
[construction of bridges, new lines, electrification]
• temporary post
- Class I Engineers
- Class II Engineers
[informed that they are temporary]
 informed – 3 years – absorbed to dept. along other temporary employees – as the post arise

[ seniority will be date of such appointment]

 signed agreement as temporary assistant officers

‘ Railway Establishment code – Rule 133(3)(c) – was assistant officer within the meaning of the rules
and eligible for promotion’

- Circular – preference Class I junior Scale Officers

HC- Accepted the petition [division bench – set aside govt. Appeal]

Amended the rules to exclude temporary assistant officer’s seniority

Supreme Court – not the same post – different – different purpose

73 or 53 – only to the extend of law made under 309

310. Tenure of office of persons
serving the Union or a State

 - every person who is a member of a defence service or of a civil service of the Union
or of an all-India service or
 holds any post connected with defence or any civil post under the Union,
 holds office during the pleasure of the President,

 and every person who is a member of a civil service of a State or

 holds any civil post under a State
 holds office during the pleasure of the Governor of the State.
in rank of persons employed in civil
capacities under the Union or a
State

 (1) No person who is a member of a civil service of the Union or an all-India service or a civil
service of a State or holds a civil post under the Union or a State shall be dismissed or
removed by an authority subordinate to that by which he was appointed.

 (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after
an inquiry in which he has been
• informed of the charges against him and
• given a reasonable opportunity of being heard in respect of those charges:
 Provided that where it is proposed after such inquiry, to impose upon him any such
penalty, such penalty may be imposed on the basis of the evidence adduced during
such inquiry and
- it shall not be necessary to give such person any opportunity of making
representation on the penalty proposed:

 Provided further that this clause shall not apply—

 (a) dismissed or removed or reduced in rank on the ground of conduct - his
conviction on a criminal charge; or
 (b) where the authority - satisfied that for some reason, to be recorded by that
authority in writing, it is not reasonably practicable to hold such inquiry; or
 (c) where the President or the Governor, as the case may be, is satisfied that in the
interest of the security of the State it is not expedient to hold such inquiry.
 (3- question - whether it is reasonably practicable to hold such inquiry as is referred to
in clause (2),
- the decision thereon of the authority empowered to dismiss or remove - shall be
final.
 Basant Lal Malhotra v State of
Punjab (1968)

Question – is there a difference between recruitment and appointment

- Petitioner - Punjab Civil Service (Judicial Cadre) – competitive exam held – 1935
- Appointed as Subordinate Judge 1938.
- Punjab Civil Service Rules – Rule 4.2 - 1937 – condonation period of 5 years in calculation of
pension recruited from 1937. (23 and 6 months – 28 and 6 months)
- Petitioner difference between recruitment and appointment.
- Court – it is within recruitment and is entitled for the relaxation.

Recruitment – made for the

Appointment – final act of
purpose of making up the
posting a person in office
deficiency in a service/cadre.
 Recruitment

 Nature of appointment

 Conditions of appointment

 Recruitment process

 Publication of recruitment

 Eligibility and qualifications

[date of qualification]

 extend of relaxation

 Miscellaneous matters
 Nature of appointment

L M Nath v Dr. S K Kacker (1996)

Prof.S.K. Kacker was appointed by selection as Director on October 15, 1990 for a term of 5 years

- His term as Director stood expired on October 14, 1995

- Select Committee to set in motion the process for selection of the Director – L M Nath [ Dean of the
institute and Head of community medicine] – 6 months

- High Court – Kacker – allowed to continue

- Supreme Court – HC no power to exercise – President of AIIMS

- Selection based on seniority and qualifications

[ court not the body to determine]

State of Karnataka v Kumari
Gowri Narayana Ambiga (1995)

- Not to be Discretionary
- The Karnataka Civil Services Rules - ''local candidate'' to mean ''a temporary
government servant not appointed regularly as per Rules of Recruitment to that service’’
- Special rules – SC/ST/backward tribe – excluded from undergoing the selection process.
- High Court – violation of Article 16
Supreme Court - discretionary – not protected under 16(4)
Official Liquidator v Dayanand
(2008)

Official Liquidators – permanent /company paid staff

- Petition in HC – additional benefits
- Supreme Court – Limited powers on judicial review of recruitment process.
 Interfere
• Contrary to Constitution
• Arbitrary
• illegeal
Conditions of service

The Commissioner, Corporation Of Madras v Madras Corporation Teachers Mandram

- The appellant- Corporation - appointment - of Education Officers either by promotion from the subordinate
cadre or appointment by deputation from the Government service.
 - post of Deputy Director and they sought appointment by transfer of a Government Officer to fill up the post of
Deputy Director to supervise the educational standards in the Corporation.

- post - equivalent to the District Educational Officer to be created to which persons from the Corporation's cadre
could be appointed
- a minimum period of experience for advancement to the higher post in the rank of Chief Educational Officer to be in
overall charge of the Corporation's Educational Department.
 Supreme Court-
-legal policy of the Government or the executive policy of the Government
-transfer affects in- service candidates.

 legal or executive policy of the Government to create a post or to prescribe the qualifications for the post. the
Court or Tribunal is devoid of power to give such direction.
Ashok Kumar v The Chairman, Banking
Service Recruitment board
 Whether posts filled in excess of notified vacancies ..?

- 1982, a requisition was given by the SBI for recruitment of 960 vacancies.

- 1983, while making Recruitment Board for the SBI prepared a select list in excess of
the requirement notified by the respective banks, i.e., 3100 candidates were put in the
select list to be appointed by the State Bank of India.
- Equally, since vacancies had arisen to the extent of 6700, combined examination Board
for the national banks made a mess in the recruitment of the candidates in excess of the
notified vacancies.
- clear the mess created by Recruitment Boards, a high-power committee was constituted
by the Ministry of Finance, Banking Division
 The high-power committee - directed the Banks to adjust the candidates whose names found place in
the wait list prepared by the Recruitment Board for the SBI in the vacancies to be filled up in the
nationalised banks.
 Mohammed Shahzad, appellant No.3 who was standing at No.2156 of the merit list for the nationalised
banks was not appointed.
 Consequently, he filed a writ petition in the High Court. Appellants 1 and 2 appear to have filed an
application for intervention.
 The High Court dismissed both the writ petitions. - filed appeal - SC
 Ministry of Finance has only the controlling power but it has no power to recruit any of the
employees of the nationalised banks. As seen, it is the Board which has the power for
recruitment and that is the proper forum for selection of the candidates.
 denial and deprivation of the constitutional right under Article 14 read with Article 16 (1) of
the Constitution.
 Eligibility and qualifications

- Appointing authority – to lay down the requisite qualifications for recruitment to Government
Services [policy matter]
- prescribe the cutoff marks to analyse the mental capacity

- Mental ability
- Mental capacity or
- Maturity [needed for a post]

- Preliminary examination is permissible –purpose of judging the basic eligibility of the candidates to
hold the test – [ not part of the main exam] – [ should not be taken to judge the merit of the
candidate]
For selection purpose

Preferential Essential
qualification qualification

A B
Vijendra Kumar Verma v PSC,
Uttarakhand (2011)

 Uttarakhand Judicial Service Rules 2005

[Procedure, Mode of selection, Recruitment, Appointment]
 civil Judge – Junior division
 Rule 8 – direct recruitment – qualifications
• Bachelor of law
• Hindi knowledge
• Knowledge of computer operation [syllabus for interview]

Supreme Court - interview letter - computer knowledge - valid

 Munna Roy v UOI (2000) [additional
qualification]

 Advertisement by Railway Recruitment Board

 Railway Recruitment Board - the post of Craft Teacher

 Appeared for test – interview -

 The list of successful candidates included her name but the ground for cancellation of the entire list without even
informing the appellant

 though the minimum qualification required was a matriculate - she was a graduate, and thus dubious method has
been adopted for being selected.

Supreme Court – cancellation set aside. [order of CAT upheld]

Vijay Singh v State of UP (2005)

 Special force in Police – age limit 28 years

 Whether violation of Article 16

Court – not a violation of article 16

- “There shall be equality of opportunity for all citizens in matters relating to

employment or appointment to any office under the State”
Date of Eligibility for recruitment

 Candidate – qualified – last date of submission of the application

 - not the date of interview.

Eg . 3 years of practice to advocate to apply for a post – complied by last date of

application.
 Shweta Viswanathan v RBI

 Eligibility – registered in a bar council

 enrolled as an advocate.
Extend of relaxation

 requisite qualifications can be relaxed if such power is conferred on the appointing

authorities
- Scrutinised by the courts
Swaran Lata vs Union Of India (1979)

- no relaxation in qualifications can be made where advertisement has been issued, -

inviting applicants. [ applicants possessing qualifications as advertised are available
and have submitted their applications.]
 Swaran Lata vs Union Of India (1979)

- For filling up the different posts under the control of the Chief Commissioner, Chandigarh, the
Government of India issued instructions that the posts should be filled up by deputation mainly from
the Punjab and Haryana State cadres.

- All efforts to get a suitable candidate either from the State of Haryana or of Punjab having proved
unsuccessful the Chandigarh Administration requested the Union Public Service Commission to select
a candidate for the post.
- None of the candidates that applied for the post satisfied all the prescribed qualifications for the
post.

- Therefore, the UPSC relaxed - qualification in respect of each of the candidates and eventually
selected respondent No. 6, for the post.

- The appellant was also one of the candidates called for interview; but she was not selected.
The appellant, on appeal to Supreme Court contended

- - the post being a deputation post in terms of instructions issued by the Government of India, the
Chandigarh Administration had no authority to fill up the post by direct recruitment and

- the Union Public Service Commission had no power to relax the essential qualifications of the
candidates without prior concurrence of the Chandigarh Administration.

- Supreme Court – appointment valid [ no breach of instructions issued by the Central Government]
 Miscellaneous matters

Age requirement
- as mentioned on the notification/advertisement.
- relaxation only if expressly mentioned in the advertisement.
”policy matter”

Manju Bala v UOI (1999)

Post of assistant /nursery teacher – Municipal corporation of Delhi
Age limit – 18 to 30 years [as on 1st Jan 1993] – last date of application 12 oct 1992.
Petitioner – qualified 15 January
- Challenged the advertisement
Supreme Court – Advertisement valid
Health
- Determined by the recruitment authority
Mr X Indian Inhabitant v Chairman, State Level Police (2005)
- SI Civil post
Petitioner – reserve police constable
Order - 70(3) A.P reserved police manual – HIV positive

Court – struck down the rule. [invalid]

 Continuing eligibility – Eg. Airline services [maintain weight]

 Political affiliation – denial of post whether violation of 14 and 16

State of MP v Ramashanker Raghuvanshi (1983)

- Government absorbed - municipal school in which the respondent worked as a teacher.
- order stated that his absorption in Government service was subject to verification of his
antecedents.
- report -Superintendent of Police [before being absorbed in Government service the respondent
had taken part in political activities]
- his services were terminated on the ground that he was not a fit person to be entertained in
Government service.
Court – Violation of article 14 and 16
Reservation category – If not able to produce proper documents – apply in which category.

MCD V Veena (2001)

- OBC certificate –
- Can apply in general category