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PETITIONER: KRISHAN CHANDER NAYAR

       Vs.

RESPONDENT: THE CHAIRMAN, CENTRAL TRACTORORGANISATION AND OTHERS

DATE OF JUDGMENT: 23/08/1961

BENCH: SINHA, BHUVNESHWAR P.(CJ) BENCH: SINHA, BHUVNESHWAR P.(CJ) DAS, S.K. SARKAR, A.K. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1962 AIR  602            1962 SCR  Supl. (3) 187  CITATOR INFO :  D          1977 SC 854  (15,16)  R          1985 SC  28  (17)

ACT: State  Employment-Arbitrary imposition of ban  against  such employement-If  violates fundamental  right-Constitution  of India, Art. 16(1).

HEADNOTE: Arbitrary  imposition of a ban against a person’s entry  ino Government service amounts to an infringement of his  right to  equality o f opportunity guaranteed by Art. 16(1)of  the Constitution. That  Article  guarantees not merely the right  to  make  an application for State employment but also a consideration on merits of that application when made. Consequently,  in the instant case where such. a ban was  in fact imposed on. the petitioner but, the affidavit filed  in answer to this petition on behalf of the authority  imposing the ban failed to indicate its nature and merely  reiterated that  the petitioner had not been deprived of his  right  to apply and no opportunity had been given to the petitioner of showing  cause  against  the imposition  of  the  ban  which evidently  prevented his applicaton being considered on  the merits. Held,  that there was a clear infringement of  the  petiners fundamental right under Art. 16(1) of the constitution.  The necessity for exact, concise and clear statements in affidavits must be emphasised.

JUDGMENT: ORIGINAL JURISDICTION : Petition No. 107 of 1957. Petition  under  Art. 32 of the Constitution  of  India  for enforcement of Fundamental.  Rights. D.   D. Chaula, for the petitioner. C.   K. Daphtary, Solicitor-General of India, H.  J. Umrigar and T.M. Sen, for the respondents.

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1961.  August 23.The Judgment of the Court was delivered by SINHA C. J.-Th-is petition under Art. 32 of the Constitution prays  for a writ of mandamus or any other appropriate  writ or direction to the 188 respondents  to  remove: the- ban.  against  the  petitioner against his entry into government service.  The  respondents to the petition are               1. The Chairman, Central Tractor Organisation,               Ministry  of Food and Agriculture,  Government               of-India, New Delhi.               2.The   Secretary,   Ministry  of   Food   and               Agriculture, New’Delhi.               3.The  Secretary,  Ministry of  Home  Affairs,               Government of India, New Delhi. The  petition is founded on the following allegations.   The petitioner  is  a  trained  machineman.   In  1948,  he  was employed   as   a   machineman  in   the   Central   Tractor Organisation.   He  continued  in  government  service   and rendered a good account of himself in that service until, by a  notice  dated  September  16,  1954,  his  services  were terminated.   The  office  order  No.  375  terminating  his services is at Annexure "A’ to the petition and is in these terms               "Shri   K.  C.  Nayar  s/o  Dr.   Tara   Chand               Designation   M/Man  is   informed  that   his               services  are  no  longer  required  in   this               Organisation.   His services will  accordingly               stand  terminated with immediate  effect  from               the  date on which this notice is  served  on               him.  In lieu of the notice for one month due               to  him  under  rule 5 of  the  Central  Civil               Service  (Temporary Service) Rules, Shri  K.C.               Nayar  will be given pay and  allowances,  for               that period.  The payment of allowances  will,               however,  be subject to the  conditions  under               which    such   allowances    are    otherwise               admissible." The   petitioner   appealed  against  the  said   order   of termination of his services, but his, appeal was  rejected. on  December  6,  1954  (Annexure  ’B’).   Thereafter,   the petitioner  applied for and obtained p,  certificate-in  the following terms (Annexure 189               "Certified  that Shri Krishan  Chancier  Nayar               served  in this organisation as a   Machineman               in the scale of Rs. 125-6-185 with effect from               13-5-1948  to  21-9-1954.  His  services  were               terminated  under Rule 5 of the Central  Civil               Services (Temporary Service) Rules, 1949." After  receiving the certificate aforesaid,  the  petitioner made   several  applications  for  appointment   under   the Government,   but  without  any  results.   Later  on   "the petitioner  learnt  to his dismay that the  respondents  had placed  a  ban  on  the petitioner  being  ever  taken  into government  service".  The alleged ban is contained  in  the following memorandum (Annexure ’D’);               "With  reference to his representations  dated               September  9, 1955 and September 21,1955,  the               undersigned  is directed to inform  Shri  K.C. Nayar, Ex-Mac hineman that Government of India               regret their inability to lift the ban on  his               employment for the present." It   is   this  ban  which,  the  petitioner   pleads,   has discriminated  against  him  in  the  matter  of  government

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employment.  The petitioner moved the Circuit Bench of Delhi of  the  High Court of Judicature for the State  of  Punjab, under  Art.  226 of the Constitution, but his  petition  was dismissed ,in limine by the Division Bench of that Court  by its  order dated September 12, 1956, and an application  for grant  of the, necessary certificate for ,appealing to  this Court  was also dismissed by the Bench on April  26.,  1957. This Court was moved under Art. 32 of the’ Constitution by a petition dated August 20, 1957. The  answer  to the petition is contained in  the  affidavit sworn  to  by one Mr. G. P. Das,  Acting  Chairman,  Central Tractor  Organisation,  Ministry  of  Food  &   Agriculture, Government of India, New Delhi.  This document runs into  23 paragraphs and whoever may have been responsible for drawing up 190 the  answer  in the form of the affidavit on behalf  of  the respondents aforesaid cannot be accused either of brevity or of  accuracy.   It  is full of  repetitions,  but,  as  will presently  appear,  does I not answer  the  main  contention raised  on behalf of the petitioner, based on Annexure  ID’, quoted  above.  Besides containing the usual plea  that  the petition  was "entirely misconceived and untenable in  law", the affidavit aforesaid on behalf of the respondents  states that  the  Central  Tractor  Organisation  is  a   temporary organisation  under the Ministry of Agriculture,  Government of  India  ; that the petitioner was appointed as  a  purely temporary  hand  ;  and that his  services  were  liable  to termination at any time by giving him one month’s notice  or one month’s pay in lieu of th- notice and without  assigning any reasons.  The statement is repeated more than once  that the petitioner’s services were duly terminated in accordance with r. 5 of the Central Civil Services (Temporary  Service) Rules, 1949.  Referring to the petitioner’s main  grievance, contained  in paragraphs 6 and 7, with particular  reference to  the memorandum contained in Annexure ’ID’,  referred  to above, the answer is in these terms               "Referring to paragraphs 6 & 7 of the petition               I do not admit that the Respondents had put  a               ban   on  the  petitioner  being  taken   into               Government  service......  I  say  that   the,               petitioner  was not deprived of his  right  to               apply for any service, and that the petitioner               had  no right to appointment. to a  Government               Service  But  it is submitted that  the  peti-               tioner   is   entitled  to  apply   for   any.               government service and such application  would               be considered on its merits." Then again in paragraph 12, after referring to the temporary character of his service and its termination. under the rule aforesaid, the following 191               "As regards the ban alleged by the  petitioner               it   is  submitted  that  it  was   purely   a               Departmental  instruction for future  guidance               which  did or does not in any way prevent  the               petitioner  from applying for any  post  under               the  Govt. and such application of  the  peti-               tioner  will be entertained on merits and  the               petitioner  is not debarred from applying  for               any  post  under  the  Government  as  he  has               alleged  in his petition.  As  the  petitioner               was  governed by Rule 5 of the  Central  Civil               Services  (Temporary Service) Rules, 1949,  no               question of the issue of any show cause notice

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             can  arise.  So far as the question of ban  is               concerned  it is further submitted that  after               the  petitioner  had  submitted  his    repre-               sentation  to  the  Chairman,  Central  Trator               Organisation,  for reinstatement it was’  duly               considered  by the Government which took  into               consideration  all the circumstances  and  the               antecedents of the, petitioner and came to the               finding that it would not be desirable to  re-               instate him." The  careless and irresponsible way in which  the  affidavit has  been drawn up is further illustrated by  the  following statement in paragraph 13 of the affidavit :               "Referring to paragraph 11 of the petition  it               is  submitted  that  the  petitioner  is   not               entitled  to  move this  Hon’ble  Court  under               Article  32  of  the  Constitution  after  his               application  for  special  leave  before  this               Hon’ble Court from the judgment of the  Punjab               High  Court, Circuit Bench, was  dismissed  on               the 26th of April, 1957, and the order passed               by  this  Hon’ble Court  dismissing  the  said               special leave petition on, the 26th of April,               1957  is final between the parties and  should               be treated as res judicata against the present               applications."               192 This is reiterated in paragraph 23, which runs as follows : .LM15 "Referring to Grounds 10 and 11 of the said petition, I  say that there is no fundamental right in the petitioner to move an application before this Hon’ble Court as he has sought to do.   The petitioner has already exhausted all his  remedies and  this  Hon’ble  Court was also pleased  to  dismiss  his application  for special leave and as such it  is  submitted that  the  present application is  wholly  misconceived  and should be dismissed with costs." It  is clear that the averments, quoted above, are  intended to convey the idea that this Court dealt with an application for special leave to appeal from the judgment of the  Punjab High  Court,  Circuit Bench and dismissed the  same  by  its order dated April 26, 1957.  As a matter of fact, there  was no such special leave application filed in this Court,  and, therefore,  there  is  no  foundation,  in  fact,  for  that averment.   What appears to have happened is that  the  High Court refused to grant the necessary certificate when it was moved  to  certify that was a fit case for  appeal  to  this Court.    It  is  manifest,  therefore,  that   the   person responsible   for  drawing  up  the  affidavit  was   either negligent  or ignorant.  Such remissness cannot  readily  be passed  over.  Those who are charged with the duty and  res- ponsibility  of drawing affidavits to be used in this  Court have  got to be circumspect and should not  make  statements and  reemphasize them when there is no basis, in  fact,  for such statements. As  already  indicated,  the affidavit,  in  answer  to  the petitioner’s  case, is unnecessarily verbose.  But  it  does not suffer only from that infirmity ; it is also  misleading And disingenuous.  Though the petitioner had pointedly drawn attention  to  the ,ban’ contained in Annexure  ID’,  quoted above, and that, indeed, was his main grievance against the 193 respondents,  the affidavit in answer to the petition,  does not  make  any  reference,to Annexure.   ’D’  and,  ignoring it,purports not to admit that the respondents had put a ban’

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on the petitioner being taken into Government service.   The answer of the respondents is, in effect, that the petitioner has not ben deprived of his right to apply for a post  under the  Government,  though so long as the ban’ is  there,  any application  by  the  petitioner for  employment  under  the Government is bound to be, ignored.  In spite of the denial on  behalf of the respondents that there was no ban  against the  petitioner’s employment under the Government, the  fact of  the matter is that the petitioner is under a ban in  the matter of employment under the, Government, and that so long as  the  ban  continues,  he cannot  be  considered  by  any Government department for any post for which he may make ail application,  and for which he may be found  qualified.   If the  affidavit  on  behalf of the  respondents  had  clearly indicated  the  nature  of the ban  and  the  justification therefore,  the Court would have ’been in a better  position in  deciding the question whether or not the petitioner  had any   substantial  grounds  for  complaining   against   the treatment, meted    out to, him. A person whohas once been  employed under the Government,and whose      services  have  been terminated byreason  of his antecedents, way or  may not stand ’;on an equal footing with other candidates  not-under such a ban’ of course, the ban imposed by Goverment  should have  a reasonable basis and must have some relation to  his suitability for employment or appointment to an office.  But an arbitrary imposition of a ban against the employment of a certain person, under the Government would certainly  amount to  denial  of  right of equal  opportunity  of  employment, guaranteed  under  Art. 16(1) of the Constitntion.   In  the instant   case,  the  affidavit  filed  on  behalf  of   the respondents  does  not indicate the nature of the  ban,  and whatever may have 194 been the nature of the ban, there  does not appear to  have been any proceeding taken against the petitioner giving  him the opportunity of showing cause against the action proposed to  be  taken  against him.  We are,  therefore,  not  in  a position  to say that the reason for the ban,  whatever  its nature,  had  a  just  relation  to  the  question  of   his suitability   for  employment  or  appointment   under   the Government. It  is  clear,  therefore,  that  the  petitioner  has  been deprived   of  his  constitutional  right  of  equality   of opportunity  in matters of employment or appointment to  any office  under  the  State, contained in Art.  16(1)  of  the Constitution.  So long as the ban subsists., any application made  by  the petitioner for employment under the  State  is bound  to be treated as wastepaper.  The  fundamental  right guaranteed  by  the  Constitution is not  only  to  make  an application for a post under the Government but the  further right  to be considered on merits for the post for which  an application  has been made.  Of course, the right  does  not extend to being actually appointed to the post for which  an application  may  have been made.  The "ban’  complained  of apparently is against his being considered on merits.  It is a  ban  which deprives him of that  guaranteed  right.   The inference  is clear that the petitioner has not been  fairly treated. The  application  is,  therefore, allowed  and  a  direction issued  to  the respondents to remove the  ban  against  the petitioner.  The petitioner is entitled to his costs. Petition allowed. 195

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