KRISHAN CHANDER NAYAR versus THE CHAIRMAN, CENTRAL TRACTOR ORGANISATION AND OTHERS

~ SINHA, C. J.-This petition under Mt. 32 of the Constitution prays for a writ of ml.llldamu11 or 11n;y other appropriate writ or direction to tJi~ respondents to remove the ban against ~he petitioner against his entry into government service. The respondents to the petition are :

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: I: The . Chairman,. Central Tractor

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Organisation, Ministry of Food and Agricul- ·' ture,· Government of India, New .Delhi. ·

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2. The Secretary, Ministry of Food. and Agriculture, New Delhi. '

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3. The Secretary, Ministry of Home Affairs, Government· of India, New Delhi.

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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 Organisatfon: -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 af Annexure .'A' to_ the petition and is in these terms:,,. · . '.'Shri K. C. Nayar s/o Dr. Tara Chand

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Designation . l\I/l\Ian 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 month due to him under rule 5 · of the Central Civil

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Service (Temporary Service) Rules, Shri K.C . .. Nayar will be given pay and allowances, .for ' that period. The payment of allowances will,

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however, be subject to .the conditions under . ,.: · .. which• such allowances are otherwise admissi·

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:: .ble." •·.": The. petitioner appealed against the said order of termjnation of his services, but his appeal was · rejected· on December . 6, 1954 (Annexure . 'B'). Thereafter .. the petitioner applied for and obtained ~ :cerlgi~te in the following terms (Annexure 'C'):, ..

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"Certified that·. Shri Krishan ·.·Chander . NayiJ.r served in thiS organisation as, 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 ServiceH (Temporary Service)

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Rules, 1949." After receiving the certificate aforesaid, the petitioner made several applications for appointment under the Government, but without any results. Later on "thP petitioner learnt to his dismay that the respondents h'td placed a ban on the petitioner being ever taken into government service". The alleged ban is contained in t.he following memorandum (Annexure 'D');

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"With reference to his representations dated September 9, 1955 and September ~1,1955, the undersigned is directed to inform Shri K.C. Nayar, Ex-Machineman that Government of India regret their inability to lift th'e

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ban on his employment for the present." It is this ban which, the petitioner pleads, has discriminated against him in the matter of government 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 eertificate for appealing to this Court was also dismissed by the Bench on April 26, 1957. '!'his Court was moved under Art. 32 of the Constitution by a petition dated August 20, 1957. · · · · · ·The ans\ver to the petitiop .is oontiiined in the affidavit sworn to by one ]\fr. G. P. Das, Acting Cjiairman, Central Tractor Organisation, Ministry of ·,Food & Agriculture, Government of India, 'New {)eJhi, .This document rims into 23 paragtaphB, and whoever may have been responsible:for :draw.ing' ·llp 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 ofrepetitions, but, as will present.ly appear, does not ans\ver the ma.in contention raised on behalf of the petitioner, ba~ed on Anne::s:ure 'D', 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 organi8ation under the Ministry of Agriculture, Government of India ; that the petitioner was appointe1l as a purely temporary hand ; and that his services were liable to termination at any time !.iy gi\·ing him one Ill'.>Uth's notice· or one month's pay in lieu of th'l 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 Servfoe) - Rules, 1949. Referring to the petitioner's main grievance, contained in paragraphs 6 and 7, with particular reference to the memorandum contained in Anne::s:ure 'D', referred to above, the answer is in these terms:

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"Referring to paragraphs 6 & 7 of th~ petition I do not admit that the Respondents · had put a ban on. t'.:ie petitioner beina taken into Government service ...... ! 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. su'lmitted that the -peti-. tioner is entitle~ to apply for any government service and such application would be consi-

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dered: on its merits." Then-again in· paragraph 12, afterreferring to the temporary: character ofhis service and its terniina- ~ion wider --the rule . aforesaid, the following s_~~t e~m_enti> :are ml\.<le - . .. R. SUPREME COUR'.l':REPORTS

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"As regardH the ban alleged by the petitioner it is s11bmitted that it was purely a Dep:wtniental instruction for future guidance whjeh did or does not in any way prevent the petitioner fron;i applying for any post under the Govt. and such application of the petitioner will be entertained on merits and the petitioner is not debarred from applying for any post under the Government as he has allegaj 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 can arise. So far as the question of ban is concerned it is further submitted that after the petitioner had submitted his representation to the Chairman, Central Tractor Organisation, for reinstatement it was duly con~idered by the Government which took into consideration all the circun;istances a,nd the antecedents of the petitioner and came to tb.e finding that it would not be des,irable to re-

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instate him." The careless and irre8ponsible way in which the affid,a vit has been drawn up is further illustrated

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the following statement in paragraph 13 of the affidavit:

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"Referring to paragraph 11 of the petition it is submitted that the petitioner is not entitled to move this Hon'blc Court under Art_icle 32 of t~e Constitution after his . applicat1011 for special leave before this Hon'ble Court from the judgment of the Punjab High Court, Circuit Bench, was dismissed on the 26~h of April, 1957, and the order passed by this Hon'~~e Court dismissing the said special leave petit10n on the 26th of April, 1957 is final between the parties and should be treated ail res judicata against the present application."

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This is reiterated in puagraph 23, which runs as follows: · · · ·

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"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 ta dismiss his application for special leave and as such it is submitted · that the present application is wholly miscon-

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ceived 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 spcchl leave to.appeal from thejlidgment of the Punjab High Qourt, Circuit Bench, and dismissed the same by its order dated April26, 1957. As a matter offact, 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 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 responsibility of drawing up affidavits to be used in this Court have got to be circumspect and should not make statements and re-emphasize them when there is no basis, in fact, for such statements.

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. .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 'D', quoted above, and that, indeed, was· his main grievance against the.

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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 respon, dents had put a 'ban' on the petitioner being taken into Government service. The answer of the respondents is, in effect, that the petit!oner has not been 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 continue~, he cannot be considered by any Government department for any post for which he may make an 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 who has once been · employed under the Government, and whose services have been terminated by reason of his antecedents, may Or may not Stand an equal footing with other candidates not under such a ban. Of course, the ban imposed by Government should · have areasonable 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 empl-0-yment of a cert3in person, under. the .Government would certainly a.mount to demal of right of equal opportunity of employment, guaranteed under Art. 16(1) of the Constitution. In the instant case, the affidavit filed on behalf of the respond~nts does not indicate the nature of the ban, and whatever may hav~ 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 nre, therefore, not in a position to say that the reason for the ban, whatever its nature, had a just relation to the question of bis suitability for employment or appointment under the Government.

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It is olcar, 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. HJ( I) of the Constitution. So I ong as the ban subsists, any application made hy the petitioner for employment under the State is bound to be treated as w11Bte-paper. 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 ho considered on merits for the post for which an application bas 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 appar&1tly 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.

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The application is, therefore, allowed and a direction iBBucd to the respondents to remove the ban against the petitioner. The petitioner is entitled to his costs.

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Petitioo allowed. ---

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