Guaranteed parity

An economy that gives utmost importance to merit, fair procedures, and equal opportunity is the most sound. Indian laws cover every aspect of the economy and individuals. For instance, Article 14 of the Constitution of India states, "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Article 16 discusses equality of opportunity in matters of public employment.

In 2021, the Apex Court in the case of Anmol Kumar Tiwari held that any appointment made in violation of recruitment rules is violative of Articles 14 and 16 of the Constitution of India, rendering such appointments null. In 2006, in the case of Union Public Service Commission v. Girish Jayanti Lal Vaghela & Others, the Apex Court categorically held that appointment to any post under the State can only be made after proper advertisement, inviting applications from eligible candidates, and holding a selection process by a body of experts or a specially constituted committee whose members are fair and impartial. This could be through a written examination, interview, or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement. Regular appointments to such posts cannot be made without issuing an advertisement in the prescribed manner. Dictums of the Supreme Court have clearly held that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment.

In Surinder Prasad Tiwari vs. U.P. Rajya Krishi Utpadan Mandi Parishad & Ors. 2006, the top court explained that our constitutional scheme clearly envisages equality of opportunity in public employment. The founding fathers of the Constitution intended that no one should be denied the opportunity of being considered for public employment on the grounds of sex, caste, place of birth, residence, or religion. This part of the constitutional scheme clearly reflects a strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment.

In A. Umarani vs. Registrar, Cooperative Societies and Others (2004), a three-judge bench of the Apex Court held that when appointments were made in contravention of mandatory provisions and statutory rules, by ignoring essential qualifications, the appointments would be illegal and could not be regularised.

It is to be noted that the dictums of courts have also clearly delineated the differences between illegal and irregular appointments, as recently illustrated in the 2024 Apex Court case of Vinod Kumar vs. UOI, which clarifies the precise position in law. Procedural formalities cannot deny substantive rights. Therefore, various pronouncements concerning illegal appointments may not apply to irregular ones, a distinct concept that depends on a case-by-case basis.

The preamble to the Constitution of India emphasises that the principle of equality is fundamental to our constitution. Article 16 of the Constitution covers the right to equality of opportunity in matters relating to public employment. Article 16(1) guarantees equality of opportunity in matters relating to 'appointment' or 'employment' to any post under the State. The well-known judgment of Umadevi by the Supreme Court has dissuaded backdoor entries.

Courts have also clearly held that possession of the requisite educational qualifications is mandatory. These should not be uncertain. If uncertainty is allowed to prevail, the employer would be flooded with applications from ineligible candidates. In fact, in Kendriya Vidyalaya Sangathan and Others v. Sajal Kumar Roy and Others, 2006, the Supreme Court held that the conditions laid down for exercising the power of relaxation must also be scrupulously followed. The Court stated that appointing authorities are required to apply their minds while exercising their discretionary jurisdiction to relax age limits. Discretion of the authorities is required to be exercised only for deserving candidates and upon recommendations of the Appointing Committee/Selection Committee. The authorities would be bound by the rules.

Thus, it is very clear that appointments in public sector undertakings, departments, civil services, etc., are to be made with absolute transparency and a fair process. This is equally important from an individualistic perspective. A nation's economy and growth depend upon the level of merit at various levels. After all, taxpayers' money is also involved, apart from the nation’s reputation internationally.

The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal