1. What are the limits to the power of the State to refuse to appoint a citizen to work for the State. That important question falls for consideration in this Writ Petition.
2. The petitioner had passed in November, 1970, his S.S.C. examination conducted by the Board of Secondary Education and his Intermediate Examination in March, 1973 conducted by the Board of Intermediate Education. Almost immediately thereafter, he joined in August 1973 the course of Turner in the Boys Town Industrial Training Centre, Hyderabad and completed it by coming out successful in the month of July, 1976 in the All India Trade Test conducted by the National Council for Training in Vocational Trades. In that All India Trade Test, the petitioner earned credit of being the best trainee of the Boys Town Industrial Training Institute. From the beginning the petitioner has been an earnest young man devoted to his studies.
After passing the trade test the petitioner worked as Turner in some private industry for a period of ten months from 1st August, 1976 to 27th May, 1977. From 25th October, 1977 to 14th November, 1978 he underwent training in the trade of Turner under the Apprenticeship Act, 1961 in the Hindustan Aeronautics Limited, Hyderabad. After the completion of the said training in the Hindustan Aeronautics Limited, he appeared in November, 1978 for the All India Trade Test conducted by the Government of India. He passed that trade test too in November, 1978, creditably scoring 559 marks out of 650. After passing the said trade test the petitioner had once against started working from 1st January, 1979 as a turner with a private engineering company.
3. The petitioner had come off age. The time has come for his seeking regular employment. He enrolled himself in September, 1976 in the Technical Employment Exchange, Hyderabad. In May 1982, the Employment Exchange sponsored the petitioner's name along with the names of some others to the Director of Defence Metallurgical Research Laboratory, Hyderabad, the first respondent herein, for the purpose of being recruited to the post of Tradesman Turner in that defence organisation. The Defence Metallurgical Research Laboratory is a wholly owned Governmeent of India undertaking. On 25th May, 1982 the petitioner appeared before the Director of the said Defence Laboratory for practical and oral tests and passed in both. Presumably on that basis the petitioner was informed that he was provisionally selected for an appointment as a Turner. The petitioner received the following communication dated 2nd June, 1982 from the first respondent :
'You have been selected provisionally for the post of Tradesman 'C' Turner. Your selection is subject to verification of character and antecedents by the police authorities and being found medically fit. The attestations in triplicate are enclosed for completion and early return.'
4. The attestation forms sent to the petitioner called for certain information, including the information relating to his past conviction. If any. The petitioner filled up the attestation forms truly and fully giving all the information called for and then submitted them to the first respondent on 8th June, 1982. In that information he disclosied that he was earlier convicted. For over a period of four months, the first respondent sent no further communication to the petitioner.
The petitioner addressed a letter to the first respondent on 5th November, 1982 complaining that although police verification was over long time back he did not receive his appointment order. He requeested the first respondent that he might be given an opportunity to serve the organisation. This letter from the petitioner having failed to evoke any response from the Director of the Defence Laboratory, the petitioner addressed on 23rd November, 1982 another letter almost in similar terms. This letter also failed to evoke any response from the first respondent.
As a last resort the petitioner took recourse to law, consulted his lawyer and issued a lawyer's notice on 26th January, 1983 to which the first respondent replied on 29th January, 1983 in the following terms :
'Your selection to the post of Tradesman 'C' Turner made provisionally as intimated to you vide this office letter under reference, is hereby cancelled.'
5. The petitioner filed the present writ petition questioning the validity and the legality of the above communication sent by the first respondent on 29th January, 1983 cancelling his provisional selection. The petitioner questions the above order of cancellation as unconstitutional and seeks a mandate from this court to be issued to the Director of Laboratory to appoint him, as a turner. The grounds on which the petitioner relies upon for the grant of this relief may broadly be classified as (1) allegations based upon violation of his rights guaranteed under Arts. 14 and 16 of the Constitution and (2) allegations based upon violation of principles of natural justice.
6. The first respondent filed a counter-affidavit. He does not dispute the facts stated above. But he does question the correctness of the legal pleas raised by the petitioner. The first respondent admits that the petitioner had been provisionally selected but asserts that the order of provisional selection had been cancelled for valid reason. He argued that the provisional selection of the petitioner had been cancelled for the reason that the petitioner was convicted in the year 1975 by the IV Metropolitan Magistrate. Hyderabad, under Rule 43, Cl.(5) read with Rule 36, Cl.(6) of the Defence of India Rules for 'creating hatred and causing disaffection against the Govt.'
The first respondent also contends that the cancellation of the petitioner's provisional selection was justified in view of nature of his office which is a Defence-Oriented Institute where work of classified nature is undertaken calling for absolute integrity and strict devotion to duty from its employees. The first respondent says, that the petitioner would not fill the bill because of his attempt to create 'hatred' and disaffection against the government. The respondent also referred to and relied upon the Conduct Rules of the Central Government Servants which are to the effect that the government employees should not engage themselves or participate in any demonstration which is prejudiciial to the interests of the sovereignty and integrity of India and the security of the State.
7. The petitioner in his reply had admitted that he was convicted in the year 1975. In fact, he himself volunteered this information through truly filling the above mentioned attestation forms. But the petitioner pleaded that the above conviction could not, in law, entail the forfeiture of his constitutional right to be appointed to the State enterprise. The petitioner argued that his conviction did not involve any moral turpitude nor any threat to the sovereignty or integrity of India. The petitioner said in his counter that his convictiion was based upon shouting slogans asking for lifting of the Emergency. He asserted that Under Art. 19(1)(a) of the Constitution a citizen, including a Government employee has a right to shout political slogans against the Government of the day and for the exercise of such a right guaranteed by the Constitution, a citizen cannot be denied appointment under the Government, any more than he could be dismissed from the Government service.
8. The controversy thus raised by the parties makes it necessary to explore the nature of the right which a citizen enjoys under our Constitution to work for the State. But before considering that larger question, I may clear one preliminary point relating to the legal character of the Defence Laboratory, because on that finding depends the applicability of Part III of the Constitution to its order cancellinng the petitioner's selection. The Defence Metallurgical Research Laboratorry is founded and founded exclusively by the Union Government of India and is intimately controlled by the Government of India. It is truly an alter ego of the Government of India although in ordinary law it wears a distinct legal garb. Such a body should be held, ignoring the appearances and cognizing the reality and following the judgment of the Supreme Court in Ajay Hasia v. Khalid Mujib, [1981-I L.L.J. 103] to be a State, within the meaning of Art. 12 of the constitution. The result is that the Defence, Metallurgical Laboratory will be bound by the limitations imposed by Part III of the Constitution. The obverse of it is that the petitioner would be entitled to claim protection of Art. 16 against the action of the Defence Laboratory.
But what is the true scope of Art. 16 of the Constitution and to what extent it can protect the petitioner. This question is no longer res integra. It is now a settled law of our Constitution that every citizenn has under that Article a guarantee of right to work for the State on equal terms. This is no doubt a facet of a citizen's right to equaliity guaranteed to him under Art. 14 of the Constitution. But in practice, such a right can also operate as a due process limitation on State action so long as the State employs one or the other. In practice, the State does carry on employment activities and therefore. Art. 16 operates in practice as a virtual due process limitation. It follows, that the State cannot deny this right to any citizen except for valid reasons.
But let it be noted that the amplitude of this right may not take in the wholly abstract and wider right to employment under the State. All that this right comprehends is a right in the citizen to be appointeed under the State except where the State can show to the court a legitimaate reason and valid circumstance justifying its refusal to appoint a particular citizen, to a particular post. The State's power of refusal to appoint is not unlimited nor arbitrary. This constitutional right would not; accept State's insidious refusal to appoint a particular person, nor would it accept a refusal totally lacking in rationality. Years back, dealing with the common law right to work for a living in the common occupations of the community, the American Supreme Court in Truax v. Raich, (1915) 60 Law Ed. 131 pertinently observed :
'The right to work for a living in the common occupations of the community is of the very essence of the personal freedom of an opportunity that was the purpose of the Fourteenth Amendment to secure.'
But it must be accepted that in Truax v. Raich (supra) the court was mainly concerned with the right to occupation. There the court was not concerned with questions relating to employment under the State. Undoubtedly, there is a good deal of difference between the State not allowing a person to work in his own occupation and the State not employing him. But still the relevance of those observations in considering the amplitude of the right to public employment under our Constitution, cannot be ruled out. Occupation and employment both ensure security and freedom although the degree of freedom is more ensured by occupation than by employment. Similarly, the employment ensures greater security than occupation. But both occupation and employment are the facets of the personal liberty of . 21 of the Constitution.
It follows that if the right to work in the common occupations of the community is accepted to be a part of the personal freedom under the American, Fourteenth Amendment, right to work for the Government today cannot be regarded as not forming part of the personal liberty, guaranteed by that Article of the American Constitution. Both call for court protection, because without such protection the citizen's right to pursue his happiness becomes precarious. Employment ensures both security and freedom and in a modern complex industrial society man is looking more for security and beyond freedom. The American Supreme Court dealt with this question of employment under the State in Board of Regents v. Roth, (1972) 33 Law Ed. 2d 548 and 567. In that case, the American Supreme Court was concerned with a right of a teacher to get his contract of employment with a University renewed. When his contract of employment was not renewed, the teacher went to the court. In Roth's case (supra) Marshall J., observed that :
'Every citizen who applies for a Government job is entitled to it unless the Government can establish some reason for denying the employment.'
This view of the American Fourteenth Amendment, guaranteeing the right to work for the Government is considered by our court in its Full Bench decision in APSRTC v. Labour Court, : AIR1980AP132 . In the Full Bench decision, this court not only accepted and followed the above observations of Marshall J., but it also laid it down that right to public employment is a new property right and as such is entitled for full constitutional protection. Underlying the observation in APSRTC's case (supra) is the thought that without employment man can have, neither security nor freedom. The Full Bench observed, 'an unbridled Government power to deny a job to a citizen or withhold a ration card to the housewife could easily put an end to our open society.' (P. 138 of AIR report). It is not necessary to repeat all that reasoning here. It is enough to note that the Supreme Court in State of Maharashtra v. Chandrabhan, [1983-II L.L.]. 256] referred to the above Full Bench decision of this court and that at least one of the learned Judges (Varadarajan, J.) expressly approved the Full Bench decision. In Board of Trustees, Port of Bombay v. Dilipkumar Nadkarni, : (1983)ILLJ1SC , the observations of the Supreme Court to the effect that the word 'life' in Art. 21 of the Constitution takes in 'livelihood', voice the same thought. In practice also, the importance of safeguarding the citizen's right to work for the State cannot be overstressed. Today, the State is the biggest employer. If the State need not act fairly and reasonably in the matter of public employment, foundations of free society can be greatly weakened. For the flowering of his personality and flourishing of his individuality man or woman must seek expression through the security of employment. Arts. 16 and 21 of our Constitution ensure protection to this right of employment. I have considered this matter at some length in D. P. Seshachalam v. Administrative Staff College of India In W.P. No. 2051 of 1980 (reported in 1984 Lab IC 875) and I fully adopt that reasoning here. I consider it to be settled law that, under our Constitution, the petitioner cannot be denied appointment under the State except for valid reasons. Let us examine the matter from the above point of view. No one can deny shouting of political slogans and asking of the lifting of the emergency are the ordinary rights citizens and in normal times where those rights are Constitutionally protected, no one can be removed from service for shouting political slogans. In Kameswar v. State of Bihar, [1962-I L.L.J. 294] and in Ghosh v. Joseph, : (1962)IILLJ615SC , the Supreme Court ruled that the fundamental right to freedom of speech and expression, right to assembly peaceably and without arms and the right to form associations, are all guaranteed to all citizens under Art. 19(1) of the Constitution and are exercisable by the Government servants excepting those Government servants who fall under Art. 33 of the Constitution. It is nobody's case that the petitioner falls under that exception. It is clear, therefore, that the petitioner's act of shouting slogans, could not have been punishable today. But his conduct became punishable in 1975 and the petitioner was convicted because then during the Emergency Art. 19(1) of the Constitution stood suspended. But let us note that even during the Emergency Art. 19 was only suspended and not abrogated and that today Art. 19 is in full force. The question is whether a person can be denied the protection of his fundamental right today for something he did during the Emergency. Does the Constitutional evil that men do, live after the constitutional Emergency I think not. The illegality of which men may be adjudged to be guilty of only by reason of pendency of Emergency does not live after the end of the Emergency. Such illegality is oft interred with the bones of the Emergency. Constitutionally speaking, the Emergency is an abnormal and passing phase in our nation's life. We accept it as a necessary evil. Its laws were not intended by the Constitution to last beyond its own life.
Its progeny dies along with it. That it why Art. 358 of the Constitution speaks only of suspension of the rights conferred by Art. 19 during emergency. The effect of the Emergency was to enable the State to act during the Emergency countrary to Art. 19 of the Constitution. But any such law that could have validly taken away during the Emergency the fundamental rights guaranteed under Art. 19(1) of the Constitution would cease to have legal effect soon after the Emergency was lifted except as respects things done or omitted to be done during the Emergency. This clear language of Art. 358 of the Constitution speaks of the unambiguous intent of the Constitution not to permit the State to deny the citizen today after the Emergency was lifted the enjoyment of his fundamental rights under Art. 19 of the Constitution on the basis of a conviction obtained only by reason of an Emergency law, a law which would have been today declared invalid. In other words, Emergency law dies with the Emergency and cannot be the basis for governing the citizen's legal and constitutional rights during normal times. Any other interpretation of Art. 358 makes the enjoyment of the fundamental rights by a citizen under part III of the Constitution dependent upon his good behaviour during Emergency, if the Constitution is interpreted that way, the effects of the Emergency law will remain eternal. I find no warrant for such an interpretation of the Constitution. Such an interpretation of the Constitution that permanently divides the citizens into those who can enjoy the fundamental rights fully and those who cannot on the basis of their Emergency behaviour, cannot be right. I, therefore, hold that denial of the first respondent to appoint the petitioner as a Turner should be examined not on the basis of his emergency conviction, but on the touchstone of Part III of the Constitution. That done, it must be held on the authority of Kameswar Prasad and Gosh (supra) that the action of the first respondent is invalid because the impugned action was based on an unconstitutional ground. A citizen cannot be denied the enjoyment of one fundamental right, because he exercised another fundamental right. For that reason, I set aside the impugned order of the first respondent.
9. What is even more, the Government of India had issued instruction on 10th May, 1977 and 5th October, 1977 to the effect that those Government employees who were dismissed during emergency for reasons connected with the Emergency, should not only be reinstated into service without break of service, but should also be paid their salaries for that period. These instructions were fully implemented even in a case where an employee of APSRTC by name Sanjeevi Raj was convicted and sentenced to undergo one month R.I. The Andhra Pradesh State Road Transport Corporation, by its proceeding dt. 9th August, 1977, not only reinstated the said Sanjeevi Raj without break of service but also paid him 50% of his salaries. All this would clearly show that the Emergency convictions cannot be used as the basis for refusing appointment to the petitioner.
10. But it is also argued for the petitioner that a man's political activity is of no relevance in appointing him to work for the State. This argument is to the effect that past political activity cannot be made a basis for rejecting employment under the State. This submission raises the perennial question for consideration as to how to keep the State, neither too strong to govern; nor too weak for its own purpose s. But on a consideration of the matter, I am satisfied that the petitioner's argument is more theoretical rather than practical. It offers no safe guidelines for State action. It largely cripples the State from discharging its constitutional obligations. Such an interpretation which completely dams the flow of the State power instead of beneficially regulating it, cannot, in my opinion, be correct. Our Constitution does not set up a mere governmental machinery. Its provisions are intended to work for the unification of our heterogeneous society. Further it sets up express and definite social and political goals through its various provisions. The strong overtones of democratic and secular ideals of equality, liberty and fraternity are clearly audible in the meaning of those provisions. The Government is under a positive duty to promote those ideals and achieve those goals. The Government, therefore, cannot be wholly indifferent in choosing persons to whom the State power under the Constitution should be entrusted. After all, it is on the personnel the achievement of the Constitutional objectives depend. It would appear to me to be even illogical to argue that any person and every person without reference to the question whether he is fit and suitable to promote the above mentioned constitutional ideals should be appointed. The fact that our Constitution is not socially indifferent and is not politically neutral between conflicting social and political goals, makes it obligatory for the State to choose the right type of persons for the exercise of the State power. Under our Constitution the State therefore enjoys a right and a duty to classify persons on the basis of their suitability to Governmental jobs. The State can, therefore, deny employment to those individuals found unsuitable to hold those constitutional posts. For example, in denying a particular job to a person who practices untouchability, it does not appear to me that the State would be acting contrary to the Constitution. It follows, that taking into account the social or political activity of a person for the purpose of his appointment to a Governmental post cannot, ipso facto, be objected to Nor can it be objected to in every case. Taking into account such past activities is not in principle very much different from examining the educational qualifications of an applicant to a Governmental job from the point of his suitability. The State machinery must protect the society and the Constitution to the extent it is democratically possible. A political or a religious fanatic, working in the interest of a foreign power or for subverting the constitutional purposes of the State cannot be a legitimate candidate to occupy a key constitutional post. He can legitimately be denied by the State appointment to a constitutionally sensitive post. Nor is it necessary that such a conduct should have been first made into a criminal offence and that the particular person was convicted of that conduct. The real question is to what extent the above scrutiny can be permitted. I wish to make it clear that the above does not mean that such category of persons above mentioned should be made totally ineligible to enter into all governmental posts. We must remember that ours is not a Police State. All that it means is that denial of employment to a particular individual based on his social and political views cannot always be unconstitutional; provided that such a denial is founded on a careful scrutiny of the individual and equally careful classification of the Governmental posts. For example, a person who may be refused to be appointed in a Defence Intelligence Service may not be refused appointment as a Superintendent in a Civil establishment. That alone appears to me to be the reasonable balance that can be struck between the need to protect and promote the constitutional purposes of the State on the one hand and the individual right to work for the State on the other. The decision of the American Supreme Court in Cole v. Philip Young (1955) 100 Law Ed 1396 is a clear authority for the proposition that governmental posts should be classified. It implies that consideration of past political activity is not barred in case of appointments to some of the posts classified as sensitive.
11. I am therefore unable to agree with the view taken by the decisions of this court reported in Ramarao v. Post Master General (1975) I AP LJ (HC) I and K. Vasayya v. Superintendent of Police, Khammam, (1980) 2 Andh WR 73 : To the extent that those decisions lay down that the past political activity should not be taken into account at all in the matter of public employment do not, in my opinion, lay down a correct principle of law. Yet I agree with the result of those cases, because the posts there were all ordinary posts.
12. Applying the above, I reject the broad claim of the petitioner that his political past can never be made a ground to deny him a job under the State. In my opinion, his past can be considered provided there is a proper classification of the posts. Applying the same principle, I also reject the respondent's claim that it can refuse to appoint the petitioner on the sole ground that the petitioner was convicted during the Emergency. It is true that the Defence Metallurgical Laboratory is a Defence-Oriented Organisation. But it does not follow that every post in that organisation is so sensitive that access should be denied to all the citizens. No material is placed before me to show that a Turner's post is so classified or is so classifiable. Nor does it follow that every convicted person is eternally unworthy to be appointed to a State post. The petitioner cannot be adjudged merely on the basis of his past conviction to be a security risk. He was not charged with any violent or unpatriotic activities. He was charged only with shouting slogans against Emergency and creating hatred and ill-will towards the government of the day. That activity, if indulged in today, will surely be counted as legitimate and normal. That activity does not show on the part of the petitioner any lack of love for our country. Let us not forget that patriotism is no one's monopoly. Certainly, it is not the preserve of those who temporarily tenant the political offices and exercise their authority. It is the inalienable right of the citizen to criticise his ruler. It follows that spreading hatred and ill-will towards the Government of the day cannot be present day ground for denying Public employment. I therefore hold that the first respondent acted in this case unconstitutionally in cancelling the petitioner's appointment.
13. There is yet another reason why the action of the first respondent should be declared illegal. The petitioner's provisional appointment must have raised high hopes and great expectations in the young and energetic mind of the petitioner. Before dashing those high and legitimate hopes to the ground, the State ought to have followed the principles of natural justice and the petitioner ought to have been given an opportunity to show cause why his provisional appointment should not have been set aside. Setting aside a provisional employment has as serious consequences as setting aside a permanent employment. Particularly so when the reason for setting aside a provisional employment can operate permanently. Before the State can be permitted to produce those catastrophic results, law would require the State to follow the principles of natural justice. The petitioner in the circumstances, ought to have been accorded a fair opportunity and hearing. As that was not done here for the reason also I set aside the impugned order.
14. Further, the rule that denied the petitioner his appointment without reference to the nature of his conduct that led to his conviction is also bad for its violation of Arts. 14 and 16 of the Constitution. A conviction in a criminal court might be obtained for most trivial and technical violations of law as in the case of a traffic offence as it can be obtained for the commission of a serious crime. Technicality is the soul of criminal law. A common rule which denies the enjoyment of a constitutionally guaranteed right to employment on the basis of a mere conviction for a traffic violation as well as for a commission of theft, suffers from the incurable vice of overinclusion. Articles 14 and 16 of the Constitution require reasonable classification of the conduct that led to criminal conviction before the conviction can be made into a disqualification. Article 311(2) of the Constitution, shows that this is the constitutional scheme. That proviso enacts an exception of Art. 311(2) which puts a fetter on pleasure doctrine and which requires an opportunity to be given to a public servant before his dismissal or removal or reduction in rank. But the above proviso to Art. 311(2) says, that that limitation on the pleasure doctrine should not apply where the dismissal etc., were based on the conduct that led to its conviction on a criminal charge. The above constitutional proviso shows the need to classify the conduct that led to a criminal conviction. Although conviction is common for all offences the conduct that led to the conviction will be peculiar to each one of them. A rule or a practice that denies the enjoyment of a fundamental right must be reasonably classificatory of conduct. It cannot treat all convictions on the same footing for the purpose of disqualification. This view, in my opinion, is supported by the language of the above-mentioned proviso to Art. 311(2) of the Constitution. The conduct of the petitioner in this case that led to his conviction falls in normal times under Art. 19(1)(a) of the Constitution. Such a conduct cannot form the basis for denial of his right under Art. 16.
15. Today's saint might have been yesterday's sinner. Tomorrow's sinner might possibly be today's saint. Before permanently banishing the persons from the field of public employment solely on the basis of their past conduct, it is proper that the State exercises utmost care and classifies the conduct according to rational norms. I set aside the impugned order for that reason also.
16. For the above reasons, I declare the action of the Director, Defence Metallurgical Laboratory, cancelling the petitioner's provisional selection as Tradesman 'C' Turner, as invalid. As the petitioner has been denied his fundamental right guaranteed to him under Art. 16 of the Constitution on the sole basis of an unsustainable ground and there are no other grounds that are suggested for denying the petitioner his job, I direct the first respondent to appoint the petitioner as Tradesman 'C' Turner with retrospective effect from the date of his provisional selection. A writ will issue accordingly. The respondents shall pay the costs to the petitioner. Advocate's fee Rs. 250/-.