Recruitment, Advertisement, Selection and Appointment

“Recruitment”, “Advertisement”, “Selection” and “Appointment” are different concepts under the service jurisprudence. “Recruitment” is the process of generating a pool of capable people to apply for employment in organization. Selection forms integral part of recruitment process, wherein from amongst eligible candidates, choice is made of person or persons capable to do the job as per the requirement. The process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. “Appointment” is made, after selection process is over, issuance of letter in favour of selected candidates, is an offer to selected candidate to accept the office or position to which he has been selected. On acceptance of the terms and conditions of appointment, the selected candidates on joining has to be accepted as appointed. Ravi Raj v. State of U.P., Writ – A No. – 26584 of 2011, decided on February 7, 2020

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Power of Executive Council – To Grant Priveleges of Affiliation

The consequence of amendment made in Section 37 of the U.P. State Universities Act of 1973 is essentially three fold. Firstly, the power to grant affiliation now stands vested in the Executive Council of the University concerned and the requirement of prior approval of Chancellor/State Government stood dispensed with. Secondly, the privilege of affiliation can now be extended to a college only when it fulfills conditions of affiliation, as may be prescribed. Thirdly, the proviso which permitted grant of temporary affiliation even if conditions of affiliation were not fulfilled entirely but only substantially stood deleted. No further amendment is made in the U.P. State Universities Act after the year 2014. The Executive Council is thus empowered in the Act now to grant privileges of affiliation only if the college fulfills all conditions of affiliation as are specified in the Statutes of the University. The object for which temporary affiliation was made permissible i.e. to secure fulfillment of all conditions of affiliation while granting affiliation even if conditions of affiliation are only substantially fulfilled and not in its entirety ceased to exist. Yashraj College of Professional Studies v. State of U.P. , Writ – C No. – 31170 of 2019

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Concept of – Human Error

The concept of human error or inadvertent error has been explained in brief by Hon’ble Supreme Court in Price Water, Coopers (P) Ltd. v. CIT (2012) 11 SCC 316, as under:— “The contents of the Tax Audit Report suggest that there is no question of the assessee concealing its income. There is also no question of the assessee furnishing any inaccurate particulars. It appears that all that has happened in the present case is that through a bona fide and inadvertent error, the assessee while submitting its return, failed to add the provision for gratuity to its total income. This can only be described as a human error which we are all prone to make. The calibre and expertise of the assessee has little or nothing to do with the inadvertent error. That the assessee should have been careful cannot be doubted, but the absence of due care, in a case such as the present, does not mean that the assessee is guilty of either furnishing inaccurate particulars or attempting to conceal its income.” Anand Kumar Tripathi v. State of U.P., Writ – A No. – 162 of 2020, decided on February 14, 2020

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Candidate in the Selection Process – Only Accepts the Prescribed Procedure and Not the Illegality

Dr. (Major) Meeta Sahai v. State of Bihar; 2019 SCC OnLine SC 1632, Hon’ble Supreme Court has held as under: “However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.” Mohan Lal Yaduwanshi v. State of U.P, Service Bench No. – 18370 of 2019, decided on January 13, 2020

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Recruitment – No Discrimination Can Be Permitted

In Shankarsan Dash v. Union of India, (1991) 3 SCC 47, a Constitution Bench of the Hon’ble Supreme Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. It was held as under: “It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.” Mohd. Rashid v. Local Bodies, (2020) 2 SCC 582

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Subsequent Development – Cannot Validate An Action

In Ritesh Tiwari v. State of U.P. (2010) 10 SCC 677, it was held as under:— “It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits. Saraswati Vidya Mandir Inter College V. State of U.P., Writ  C. No. 16120 of 2009 Connected with Writ – C. No. 26354 of 2009, decided on 18.05.2020.

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‘Capable of Earning’ and ‘Actual Earning’ – Difference Between

In Arun Vats v. Pallavi Sharma, reported as 2019 SCC OnLine Del 11817 and Niharika Yadav v. Manish Kumar Yadav in Crl. Rev. Petition 755/201, decided on 18.12.2019 where, while relying upon the decision rendered in the case of Shalija v. Khobbana reported as (2018) 12 SCC 199, it was held that ‘capable of earning’ and ‘actual earning’ are entirely two different things. Merely because the wife is ‘capable of earning’ is not a sufficient reason to deny her the maintenance. It was also stated that the petitioner has qualified CTET test and is now more qualified to earn. In Swapan Kumar Banerjee v. The State of West Bengal, reported as 2019 SCC OnLine SC 1263, the Hon’ble Supreme Court observed as follows:“The next issue raised was that the wife being a qualified architect from a reputed university i.e. Jadavpur University, Calcutta would be presumed to have sufficient income. It is pertinent to mention that as far as the husband is concerned, his income through taxable returns has been brought on record which shows that he was earning a substantial amount of Rs. 13,16,585/- per year and on that basis Rs. 10,000/- per month has been awarded as monthly maintenance to the wife. No evidence has been led to show what is the income of the wife or where the wife is working. It was for the husband to lead such evidence. In the absence of any such evidence no presumption can be raised that the wife is earning sufficient amount to support herself.”  Anita v. Amit, Crl. Rev. P. 515/2018, decided on 24.02.2020

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