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K. Sadanandan Vs. the State of Kerala - Court Judgment

LegalCrystal Citation
SubjectService;Constitution
CourtKerala High Court
Decided On
Case NumberO.P. Nos. 1573 of 1960 and 101 of 1961
Judge
Reported inAIR1963Ker59
ActsConstitution of India - Articles 16, 16(1), 16(2), 226 and 309; Kerala State and Subordinate Service Rules, 1958 - Rules 3 and 10
AppellantK. Sadanandan
RespondentThe State of Kerala
Appellant Advocate V.R. Krishna Iyer,; R. Krishnaswamy and; V.M. Nayangar
Respondent AdvocateAdv. General
DispositionWrit petitions dismissed
Cases ReferredMcanliffe v. New Bedford
Excerpt:
service - appointment - articles 16 and 309 of constitution of india and kerala state and subordinate service rules, 1958 - petitioner applied for post of police officers - his name recommended to government for necessary sanction by public service commission - government rejected claim on ground of character and antecedents of petitioner - government not bound to accept recommendation made by public service commission - government may make rules regulating appointment procedure - petitioner cannot pressurize government to appoint him as police officer. - - 1573/60, further avers that he presented to the government a conduct certificate issued to him, by an ex-minister of the madras government, about his good conduct and character, and that he has no political activities nor party.....orderc.a. vaidialingam, j.1. in both these writ petitions, in which the facts arc more or less common, the question that arises for consideration is as to whether any fundamental rights guaranteed to the petitioners, under article 16 of the constitution, have been in any way, violated.2. in response to the notification published in the state gazette, calling for applications for direct recruitment to a few posts to probationary sub-inspectors of police, both the petitioners had applied for selection to the said post.3. the public service commission interviewed the various applicants, including the two petitioners, and selected among others, the petitioners also for recruitment as probationary sub-inspectors of police, in the police department.4. the communication sent to each of these.....
Judgment:
ORDER

C.A. Vaidialingam, J.

1. In both these writ petitions, in which the facts arc more or less common, the question that arises for consideration is as to whether any fundamental rights guaranteed to the petitioners, under Article 16 of the Constitution, have been in any way, violated.

2. in response to the notification published in the State Gazette, calling for applications for direct recruitment to a few posts to Probationary Sub-Inspectors of Police, both the petitioners had applied for selection to the said post.

3. The Public Service Commission interviewed the various applicants, including the two petitioners, and selected among others, the petitioners also for recruitment as Probationary Sub-Inspectors of Police, in the Police Department.

4. The communication sent to each of these petitioners, by the Public Service Commission, and a copy of which has been filed as Ext. P1 is as follows:

'KERALA PUBLIC SERVICE COMMISSION

Telegraphic Address 'KERSERCOM' ... TelephoneNo. 2447 No. R. II (13) 4363/59 .... Trivandrum dated 9.3-1960MEMORANDUM

Sri. K. Sadanandan is informed that he has been selected for recruitment as Probationary S. I. of Police on Rs. 125/- per mensem in the Police Department. The selection is subject to satisfactory proof of health and whatever further checking Government may find it necessary to do.

Further instructions will be, issued to him in due course by the Department referred to in the paragraph above. Sd/-Secretary,Public Service Commission.'

Shri K. Sadanandan, referred to in Ex. P1, is the petitioner in O. P. 1573/60. A similar communica-tion was sent to Shri. N. V. Krishnan, who is the petitioner in the connected O. P. 101/61.

5. According to the petitioners, 24 persons, including the two petitioners, were selected by the Public Service Commission and the training of the selected hands was to begin on 26-12-60. It is their further allegation that though most of the other persons, so selected, were intimated by the State Government about their joining for training the two petitioners have been excluded from among the persons, who are to so join for training. Therefore, the petitioners allege that they have been denied employment by the State Government, notwithstanding the fact that they have been selected by the Kerala Public Service Commission.

6. The petitioner in O. P. 1573/60, further avers that he presented to the Government a conduct certificate issued to him, by an Ex-Minister of the Madras Government, about his good conduct and character, and that he has no political activities nor party affiliations and that his health is very sound. In fact, this petitioner also states that he has produced a medical certificate from the District Medical Officer, Cannanore. He also urges that there are no other grounds, on which his claims could have been rejected; and he alleges that there has been discrimination in the matter of employment shown to him, in that without any basis whatever, he has been excluded from employment and thus there is a denial of equality of opportunity for employment guaranteed to citizens of India, under Article 16 of the Constitution.

7. This petitioner also avers that he is a member of the Scheduled Classes and his exclusion involves a selection, with lesser representation for the Scheduled Castes and as such there is a violation of the rules framed by the State Government under Article 16(4) of the Constitution.

8. Again, according to the petitioner in O. P. 1573/60, principles of natural justice have also been violated, inasmuch as no opportunity was given to him to show cause regarding the action, taken to his prejudice, in the matter of recruitment as Sub-Inspector of Policy in the State Service and that he has not been informed of the grounds on which he was being rejected, and that he has been left entirely in the dark as to why he has not been appointed to the post.

9. The petitioner further avers that the State Government is bound to recruit those, whom the Public Service Commission has selected; and inasmuch as the selection made by the Public Service Commission has not been acted upon by the State Government, the refusal by the State Government to appoint the petitioner as Sub-Inspector, is illegal and void.

10. On these allegations the petitioner, in O. P. 1573/60 prays for the issue of a writ of Mandamus compelling the State Government, the respondent herein, to recruit him as Probationary Sub-Inspector of Police, in the Police Department.

11. The State Government, in its counter-affidavit filed through the Superintendent, Home (A) Department, controverts the various allegations made by the petitioner.

12. The State Government, no doubt admits that the petitioner was one, among the several candidates, who had applied for direct recruitment, to a few posts of Probationary Sub-Inspectors of Police. The Public Service Commission interviewed the applicants including the petitioner, and sent to the. Government, a list of candidates provisionally selected for recruitment, subject to verification of their character and antecedents. The names of both the petitioners were included in the provisional list sent to the Government by the Public Service Commission. But the inclusion of a person's name in such a list, does not confer any right whatever for actual appointment. The recommendation made by the Commission, according to the State Government, is only a provisional recommendation, and the appointment, is subject to the Government being satisfied about the character and antecedents of the persons mentioned in the list. The Public Service Commission only assess the relative merits in regard to academical qualifications and general suitability. The verification of the character and antecedents of candidates provisionally selected by the Public Service Commission, is made by the Government, through other routine channels. The Government are entitled to be fully satisfied about the candidate possessing a clean record free from any blemish about his suitability, on grounds of loyalty, integrity and discipline. Those qualities, according to the State Government, are all the more necessary in the case of recruitment to a service, like the Police Service, where considerations of integrity, security, and discipline are of paramount importance.

13. The State Government further avers that there has been absolutely no discrimination whatever, as between the one candidate and another in the matter of verification of their character and antecedents, and the same standards and modes of verification are applied to all candidates, provisionally selected by the Commission. The fact that the Government ultimately decides, on the basis of the verification so made by them, that some of the candidates are not suitable for appointment, does not in any way, involves any discrimination.

14. The Government also takes up the stand that like all other employers, the Government also are entitled to pick and choose, from amongst the candidates offering themselves for employment.

15. The State Government further avers that after the list of persons provisionally selected for appointment as Probationary Sub-Inspectors was sent by the Public Service Commission, steps were immediately taken for verification of the character and antecedents of all the candidates including the two petitioners herein, who had also been provisionally recommended. As a result of such verification, according to the Government, three of the candidates, which included also the two petitioners, were found unsuitable for appointment in the opinion of the Government and therefore, Government decided not to appoint these petitioners, as also one other candidate who was found unsuitable. In particular, the State Government avers that the two petitioners, are among the three candidates, who were climinated, as the State Government, on verification of their character and antecedents, was not satisfied about their suitability for the appointment, and the remaining 21 candidates were approved for final selection and were also actually appointed.

16. After the rejection of the three persons, including the two petitioners, the Public Service Commission at the request of the Government, provisionally selected three other candidates and after a due verification of their character and previous record, those three candidates were found suitable. Accordingly, appointment orders were issued to all the 24 candidates, including the three persons newly selected by the Public Service Commission. Such orders were issued on 5-12-60 and they had joined the Police Training College on 26-12-60.

17. The State Government further categorically aver that the two petitioners have not been rejected on grounds of health and the reasons for not selecting them are because that the State Government on verification of their character and antecedents, was not satisfied about their suitability for the appointment It is further averred by the State Government that there has been no contravention of Article 16(4) of the Constitution either.

18. The State Government finally also aver that there is no obligation on their part to either issue a show cause notice to the candidates who are not selected or communicate to them the reasons for their rejection. No person, according to the Government, has a right to be entertained in the service of the Government and therefore, no action prejudicial to the rights of the petitioner has been taken by the State Government.

19. The State Government further takes up the position that the petitioners are not entitled to ask for the issue of a Mandamus, because no such relief could be asked for under the circumstance. They also state that all the available vacancies have been filled up by appointment of 24 persons and therefore, the petitioners cannot ask for a writ of Mandamus, compelling the State Government to appoint them, to a post which is not available at all.

20. On these grounds the State Government prays for dismissal of the writ petitions.

21 The allegations in the affidavit in O. P. 101/61, are also more or less substantially the same, excepting the petitioner therein states that according to his information and belief, he was selected even in the first batch when the Public Service Commission chose the best 12.

22. This petitioner further avers that the object of the Stale Government, in asking the Public Service Commission to select three other persons, is to bring in one of the applicants, who is a clerk in the personal staff of the Education Minister concerned, and that in order to give place to such an influential person, the petitioner's claims have been excluded. The petitioner also refers to his employment as a clerk in the Co-operative Rural Bank, Payangadi and his services as Bank Inspector under the Malabar Co-operative Central Bank and states that he has acquitted himself satisfactorily in those jobs. The petitioner also claims to have a good character and conduct and that he has no political affiliations, nor any inclination to politics. He also makes the same allegations of discrimination and violation of the guarantee under Article 16 of the Constitution, as made in the other writ petition.

23. Though a separate counter affidavit has been filed by the State Government in this writ petition also, the stand taken by the State Government is subsantially the same as in the connected writ petition, that there has been no violation of the provisions of Article 16 and that the petitioner cannot claim a right to be appointed to any post. Here again, the State Government categorically takes the stand that after the Commission's advice, verification of the character and antecedents of all the candidates, including the petitioner was made, and the petitioner was eliminated, because on such verification of character and antecedents, the Government was not satisfied about his suitability for the appointment.

24. Regarding the particular allegation that this petitioner was excluded with a view to give place to one of the members of the personal staff of the Education Minister, the State Government categorically deny that allegation. They also aver that this petitioner and the petitioner in the connected writ petition and another person were rejected, because the Government, after due verifications of their character and antecedents, did not consider them suitable for appointment. When three names recommended by the Public Service Commision were eliminated on the ground stated above, the State Government desired the Public Service Commission to make a recommendation of three further names for appointment; and no doubt, one of the persons newly recommended by the Commission was a member of the personal staff of the Minister, but that circumstance had nothing whatever to do with his selection, which was initially made by the Public Service Commission.

25. Here again, the State Government takes up the position that this petitioner has not been rejected on grounds of health and it is really because of the fact that they were not satisfied about his character and antecedents, that he was excluded from appointment.

26. Mr. V. R. Krishna Iyer, learned counsel for the petitioners, in both these writ petitions, urges that the equality of opportunity for employment or appointment to an office under the State, guaranteed under Article 16(1) of the Constitution, has been grossly violated by the State, when it has declined to appoint these two petitioners as probationary Sub-Inspectors. The learned counsel urges that after the recommendation made by the Public Service Commission the State Government has acted illegally and without jurisdiction, in ignoring the claims of these two petitioners for appointment.

27. The learned counsel also urged that there is absolutely no indication in the counter-affidavit as to the grounds on which, both the writ petitioners have been excluded from being appointed as probationary Sub-Inspectors, excepting making a very vague allegation that inquiries regarding the character and antecedents of the petitioners were made through routine channels. The State Government has not stated, as to the nature of the inquiry made nor the materials so collected by the authorities, if any, and the petitioners have not been made known of those facts or materials. The learned counsel further urged that even this Court is kept in the dark by the State Government, and categorically stating either the nature of the inquiry conducted or about the materials, if any, collected, so that this Court may be in a position to appreciate as to whether the reasons given by the State Government for excluding the petitioners are justified or not.

28. If such an action on the part of the State Government is accepted, the learned counsel urged that the rights guaranteed under Article 16, will become absolutely illusory and a complete freedom will be recognised in the State Government to exclude anybody from appointment to Government Offices, on the ground that they are not satisfied about their character and antecedents.

29. Even the reason given namely, that the Government was not satisfied about the character or antecedents of the petitioners, the learned counsel urges, is a very vague and ambiguous reason given and without more particulars being furnished, those reasons cannot be accepted by this Court. The learned counsel very strongly relied on a recent decision of the Supreme Court which has come only in Blue Print, rendered in Petition No. 107/57, on 22-8-1961: (AIR 1962 SC 602), Krishan Chander Nayar v The Chairman, Central Tractor Organisation. According to Mr. V. R. Krishna Iyer, on the basis of this decision the writ of Mandamus asked for in this case, will have to be granted. The plea of the State Government that all the posts have been filled up and therefore, a writ of Mandamus cannot be issued, should not be accepted, because the State Government should not be allowed to scuttle the rights of citizens guaranteed under . Article 16 in such a manner. In any event, the learned counsel urged that the State Government must be asked to reconsider the claims of the writ petitioners, disregarding the various matters mentioned in the counter-affidavit and to give a proper consideration of the claims of the applicants, having due regard to the fact that the Public Service Commission has considered them eligible for such an appointment.

30. I will revert to the decision of the Supreme Court relied on by Mr. V. R. Krishna Iyer, after adverting to the contentions raised by the learned Advocate-General, on behalf of the respondent State. The learned Advocate-General completely supported the stand taken by the State Government in these two writ petitions. The learned Advocate-General urged that there has been absolutely no violation of the rights guaranteed under Article 16(1) or 16(2) of the Constitution. There has been no denial of equal opportunity to these petitioners relating to employment or appointment to an office under the State. On the other hand, that the petitioners had that opportunity will be clear from the fact that both of them had a right to apply to the post in question, and they did apply, as a matter of fact. The Public Service Commission considered their claims, along with the various other applicants and in fact, included the names of the two petitioners in the provisional list prepared by them and sent to the Government. Therefore, under these circumstances, can it be stated that the equal opportunity relating to employment or appointment has been violated in the case of these petitioners, asked the learned Advocate-General and according to him, it cannot be stated that any rights of the petitioners, have been, in any manner violated.

31. But the learned Advocate-General urged that so far as the actual appointment itself is concerned, the State Government was perfectly entitled to consider the character and antecedents and other qualities of not only the petitioners, but also of all other applicants, whose names had been provisionally recommended by the Public Service Commission. It should not be forgotten, the learned Advocate-General urged, that the selection in this case is being made for appointment to the Public Service of the State, where it cannot certainly be controverted that character, antecedents, loyalty, integrity and discipline play a considerable part in considering the suitability or otherwise of a candidate for being appointed to such responsible post.

32. The learned Advocate-General also urged that in his case, as a matter of fact, it has been categorically stated in the counter-affidavits filed by the Government that inquiries were made about the character and antecedents of, not only the petitioners, but also of all the other 22 candidates whose names had been recommended by the Public Service Commission. The nature of the inquiry regarding the character and antecedents made by the State Government in respect of the two petitioners, and in respect of all the other applicants was exactly the same. In fact, the State Government had to reject, not only the claims of the two petitioners, but also of another candidate on the same ground, notwithstanding the fact that he too had been recommended by the Public Service Commission. The learned Advocate-General also pointed out that in each of these matter, it has been categorically stated by the State that the two petitioners herein have not been excluded on grounds of health and that the reason for excluding these petitioners was because, on verification of their character and antecedents, they were found unsuitable and the Government was also satisfied on that aspect. Therefore, he urged that the grounds for excluding the petitioners, have been clearly and categorically stated by the State Government.

33. When three names were so rejected, fresh recommendations were made by the Public Service Commission and those persons were appointed only after the necessary verification, in the same, manner, about their character and antecedents.

34. The learned Advocate-General, in this connection, referred me to certain rules in Kerala State and Subordinate Services Rules, 1958 to the effect that the inclusion of a candidate's name in any list of approved candidates for service, shall not confer on him any claims for appointment to the service, and that one of the essential qualifications for appointment to Government Service is that the character and antecedents of the person to be so appointed to Government Service as to qualify him for such service. In this case, the two petitioners did not admittedly satisfy this test about character and antecedents.

35. The learned Advocate-General also urged that it is open to the appointing authority to lay down the requisite qualifications for recruitment to Government service and also to lay down such prerequisite conditions of appointment. He also urged that like all other employers, Government are also entitled to pick and choose from amongst a large number of candidates offering themselves for employment under the Government. In this connection, the learned Advocate-General relied upon the decision of the Supreme Court in Banarsidas v. State of Uttar pradesh, (S) AIR 1956 SC 520.

36. The learned Advocate-General further urged that what has been guaranteed under Article 16 of the Constitution is the equality of opportunity relating to employment or appointment and nothing more. There is no right in anybody to be actually appointed to the post, for which an application may have been made, and for this proposition the learned Advocate-General referred me to the recent decision of the Supreme Court in Petition No. 107/57 (AIR 1962 SC 602), relied upon by Mr. V. R. Krishna Iyer, learned counsel himself.

37. The learned Advocate-General further urged that there can be no issue of a writ of Mandamus, as is prayed for in these two writ petitions, unless the petitioners are able to satisfy this Court that there is a duty, which the State Government is bound to perform in this matter. A writ of Mandamus cannot issue compelling the State Government to appoint anybody to a particular post, disregarding all the rules and Regulations governing the said appointment.

38. In any event, the learned Advocate-General further contended that admittedly, all the 24 appointments have been made and there is no vacancy, as such, to which any of the petitioners can be appointed at present, even if their contentions are accepted and this circumstance will have also to be taken info account by this Court, in considering as to whether a writ should be issued in the manner asked for.

39. The main question that arises for consideration is as to what exactly are the rights guaranteed to persons, in the position of the petitioners, under Article 16(1) and (2) of the Constitution. Article 16(4) does not directly come into the picture.

40. Before I deal with this aspect, it is better to dispose of certain minor points that arise for consideration.

41. I cannot certainly accept the contention of Mr. V. R. Krishna Iyer, learned counsel for the petitioner, that the fact that the two petitioners were recommended by the Public Service Commission for appointment as probationary Sub-Inspectors gives them also a right to be appointed to the post and that the State Government has no power to go behind the same. To reject the contention of Mr. V. R. Krishna Iyer on this point, it is not necessary to go beyond what is provided in Rule 3(b) of the General Rules in the Kerala State and Subordinate Services Rules, 1958. Rule 3 is as follows:

'Rule 3. Approved Candidates:-- (a) All first appointments to the service shall be made by the appointing authority on the advice of the Commission in respect of posts falling within the purview of the Commission and in all other cases by the appointing authority from a list of approved candidates prepared in the prescribed manner.

b) The inclusion of a candidate's name in any list of approved candidates for any service (State or Subordinate) or any class or category in a service, shall not confer on him any claim to appointment to the service, class or category'.

Sub-rule (b) of Rule 3 extracted above, will clearly show that a mere inclusion in a list shall not confer any claim to appointment to the service, class or category. Therefore, the fact that the Public Service Commission included these petitioners in their list, will not assist the petitioners.

42. in this connection, I may also refer to Rule 10 of the said Rules, which relates to qualifications of persons for appointment. Sub-rule (b) of Rule 10, which is relevant for the present purpose, is as follows:

'Rule 10(b). No person shall be eligible for appointment to any service by direct recruitment unless he satisfies the Commission in cases where the appointment has to be made in consultation with it or the appointing authority, in other cases:

i) that he is of sound health, active habits and free from any bodily defect or infirmity rendering him unfit for such service; and

ii) that his character and antecedents are such as to qualify him for such service.'

It will be seen that under Clause (ii) of Sub-rule (b) of Rule 10. the eligibility for appointment to any service by direct recruitment, depends upon the authorities being satisfied that the character and antecedents of the persons are such as to qualify them for such service. That it is open to the appointing authority to lay down the requisite qualifications for recruitment to Government service, has been recognised by the Supreme Court itself, as I will show presently.

43. It has been categorically stated in the counter-affidavits that the selection is made for the Public Service and therefore, even apart from the general provisions contained in the rule extracted above; the requirement as to character, antecedents, loyalty, integrity and discipline are very essential.

44. I am not also inclined to accept the contention of Mr. V. R. Krishna Iyer that the State Government has not given any reasons in the counter-affidavit for excluding the petitioners from appointment as Sub-Inspectors; nor can I accept his contention that even the reasons given by the State Government in the counter-affidavits are vague and ambiguous. The State Government has categorically stated in the counter-affidavits filed in both these matters, that after the names of the two petitioners were included in the list by the Public Service Commission, the Government made, by their usual channel, a verification regarding the character and antecedents of each of these petitioners and as a result of such verification, the two petitioners were found unsuitable for appointment, in the opinion of the Government. It is also categorically stated that the Government, on verification of their character and antecedents, was not satisfied about their suitability for their appointment. The State Government further repeats that it is really on this ground that the two petitioners, along with another individual were eliminated; and they also repeat that the petitioners were not rejected on grounds of health. Therefore, they have given a reason, based upon character and antecedents, for eliminating the petitioners, from appointment. In my view, the State Government is absolutely entitled to take those circumstances into account. because of the provisions contained in Clause 6 of Sub-rule (b) of Rule 10 of the Kerala State and Subordinate Services Rules, 1958, which have been framed, in exercise of the powers conferred under the proviso to Article 309 of the Constitution.

45. in the view that I take the question as to whether the petitioners are entitled to ask for a writ of Mandamus and under what circumstances such a writ can be issued, do not arise for consideration, because I am not inclined to accept the contention of Mr. V. R. Krishna Iyer, learned counsel for the petitioners that there has been any violation of the provisions of Article 16 of the Constitution.

46. Then coming to the main question, as to whether there has been a violation of the fundamental right, if any, guaranteed to the petitioners, under Articles 16(1) and (2), it is desirable to extract Article 16(1) and (2), Article 16(4) does not come into the picture in this case. Article 16(1) and (2) are as follows:

'Art. 16. Equality of opportunity in matters of Public employment--(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State'.

As to the powers of the appointing authority, to frame rules regarding the qualifications for recruitment to Government service, and as to the nature of the Fundamental Right guaranteed under Article 16, as also the powers of the Government to make an appointment, from amongst a large number of candidates they have all been stated by His Lordship Mr. Justice Sinha (as he then was) in the decision of the Supreme Court reported in (S) AIR 1956 SC 520 at p. 521:

'In our opinion, it is open to the appointing authority to lay down the requisite qualifications for recruitment to Government service and it is open to the authority to lay down such prerequisite conditions of appointment as would be conducive to the maintenance of proper discipline amongst Government Servants:

Article 16 of the Constitution is an instance of the application of the general rule of equality laid down in Article 14, with special reference to the opportunity for appointment and employment under the Government. Like all other employers, Government are also entitled to pick and choose from amongst a large number of candidates offering themselves for employment under the Government.'

His Lordship takes note of the fact that in that case, the Government have not laid down rules excluding any particular group of persons from being candidates for appointment.

47. From the observations extracted above, it follows that it is open to the State Government, to frame the necessary rules prescribing the requisite qualifications and that it is also open to the authority to lay down such pre-requisite conditions for appointment, as would be conducive to the maintenance of proper discipline amongst Government Servants. Judged in this light, it will follow that one of the prerequisite conditions for appointment to service, under the Government in this case, is regarding character and antecedents, as prescribed in Rule 10(b)(ii) of the Kerala State Subordinte Services, Rules, 1958 referred to above.

48. That what is guaranteed under Article 16(1) and (2) is equality of opportunity and nothing more and that reasonable rules for selection in that connection can be made, is also clear from the observations of Their Lordships of the Supreme Court in the decision reported in General Manager S. Rly v. Rangachari, 1961-2 SCJ 424: (AIR 1962 SC 36). No doubt, in that case, Their Lordships were dealing mainly with the scope of Article 16(4) of the Constitution. Mr. Justice Gajendragadkar, delivering the judgment on behalf of the majority, observes at p. 429 (of SCJ): (at p. 40 of AIR) as follows:

'This equality of opportunity need not be confused with absolute equality as such. What is guaranteed is the equality of opportunity and nothing more.' Article 16(1) or (2) does not prohibit the prescription of reasonable rules for selection to any employment or appointment to any office. Any provision as to the qualifications for the employment or the appointment to office reasonably fixed and applicable to all citizens would certainly be consistent with the doctrine of 'the equality of opportunity;.....'

It cannot certainly be controverted that in the cases on hand, the requirement as to qualifications about character and antecedents, applies to all citizens who are applicants, and cannot certainly be considered to be unreasonable,

49. Considerable support is sought to be derived by Mr. V. R. Krishna Iyer, learned counsel for the petitioners from the recent judgment of Their Lordships of the Supreme Court, in Petition No. 107/57; (AIR 1962 SC 602). That judgment is dated 22nd August, 1961 and is not yet reported in the Reports. A Blue Print copy has been made available.

50. According to Mr. V. R. Krishna Iyer, Their Lordships struck down an arbitrary ban that had been imposed against the petitioner therein, from applying for Government Service on the ground that the Central Government had not placed any material before the Court, which will justify the imposition of such a ban. The learned counsel further urged that the Supreme Court has very strongly commented on the conduct of the Central Government in that case and according to the learned counsel, those criticisms will equally apply to the stand taken by the State Government in these proceedings. I have no hesitation in rejecting this contention advanced by Mr. V. R. Krishna Iyer.

51. It will be seen that in that case there was a ban imposed by the Central Government, against the petitioner therein, from applying for any post under the Government. Notwithstanding the categorical averment made by the petitioner therein regarding this ban and the lack of any materials that would justify the imposition of such a ban, the Central Government did not squarely meet the charge of the imposition of the ban. It is under those circumstances, that their Lordships of the Supreme Court bad to make some severe comments regarding the manner in which the counter-affidavit had been prepared in that case. No such circumstances exist in the matters before me. As I have already pointed out, the State Government has made a positive averment, giving the particular reason for excluding the petitioners from appointment, as Probationary Sub-Inspectors. This Court is not certainty concerned as to whether the State was justified in coming to that conclusion against the petitioners on the basis of the materials available before them. When the allegations of the petitioners are that without any basis whatsoever, the State has excluded them from consideration for appointment, the State Government have clearly set out the circumstances, in considerable detail regarding the circumstances under which the petitioners' claims were excluded. Therefore, this is not an instance where the State Government has offered no reasons whatsoever, for the action that they have taken in excluding the claims of the petitioners. Therefore, in my view, the facts in this case stand on an altogether different footing from those which obtained in the case before the Supreme Court. From the facts obtaining in the case before the Supreme Court it is clear that it was a case, where the petitioner therein, was not even given an opportunity to seed up an application for appointment and of having his claim considered, because any such application so sent by him, would have been summarily rejected without any consideration on the merits in view of the ban imposed by the Central Government, as against the petitioner therein.

52. On the other hand, in the cases before me, even according to the petitioners, themselves, it is clear that there was absolutely no restriction regarding their right to make an application for the post. In fact, it is also seen that their applications were considered and at any rate, the Public Service Commission, from their points of view, considered the two petitioners as eligible for being included in the list for appointment. It is really at a later stage, that the appointing authorities were not satisfied about their character and antecedents on verification. Therefore, it cannot certainly be stated that, in this case, the petitioners have been denied the equal opportunity relating to employment or appointment to any office under the State guaranteed under Article 16.

53. Mr. V. R. Krishna Iyer urged that in this case, there has been no proper consideration of the applications of the petitioners by the State Government. This contention cannot certainly be accepted, having particular reference to the rules that I have already referred to prescribing one of the essential qualifications as pertaining to character and antecedents. The same uniform principle has been applied, not only to the petitioners, but to all the persons, whose names were recommended by the Public Service Commission. In the matter of inquiry also regarding this, the same machinery and the same test have been adopted by the State Government. Therefore, there cannot certainly be a charge of the petitioners being discriminated against in these matters by the State Government. In fact, all qualifications prescribed, as necessary for appointment to Government Service under the Kerala State and Subordinate Services Rules, 1958, are applicable to every one of the persons who seeks appointment under the State.

54. In my view, the decision of the Supreme Court, in Petition No. 107/57: (AIR 1962 SC 602), that has been very strongly relied upon by Mr. V. R. Krishna Iyer, does not give any assistance whatsoever to the petitioners. It cannot certainly be stated in this case, that the qualification regarding character and antecedents has no reasonable basis in relation to the appointment. Such a qualification is absolutely essential for all services under the State and more so when appointments are being made to Police Service, as in this case.

55. The learned Chief Justice observes in the said judgment as follows:

'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.'

Applying the test laid down by His Lordship in the above observation, can it be stated that the petitioners in this case, had no equal opportunity to make an application for the post in question to the Government? Can it be further stated that the petitioners' right to have the application considered on merits for the post for which applications were made, has been in any way violated in this case? in my view, the answer to both these questions must be an emphatic 'No'. The petitioners had a right to make the applications and as a matter of fact, they did make the applications. Their applications have been considered by the Public Service Commission and their names have been recommended for inclusion in the list. The Government also have considered their applications, but as they were not satisfied about their character and antecedents, which are absolutely necessary under the rules governing the matter, Government did not make the appointment as such. The concluding part of the observation of the learned Chief Justice extracted under above, clearly, shows that the fundamental right guaranteed under Article 16, does not extend to being actually appointed to the post, for which an application may have been made.

56. It is really this right namely, the right to be appointed as Probationary Sub-Inspectors that is being sought to be enforced by the petitioners in these writ petitions, and that such a right does not exist, is the view of the learned Chief Justice.

57. I may wind up the discussion on this aspect, by quoting an observation of Mr. Justice Holmes in Mcanliffe v. New Bedford, (1892) 155 Mass. 216 at p. 220:

'The petitioner may have a Constitutional right to talk politics; but he has no Constitutional right to be a policeman.'

58. Therefore, it follows that the petitioners have no right to be appointed to the post as such. In fact, the prayer in these two writ petitions is to compel the Stale Government to recruit the petitioners as Probationary Sub-Inspectors of Police in the Police Department. When the petitioners have no such right, it follows that the writ petitions have to fail.

59. Accordingly, both the writ petitions are dismissed and each of the petitioners will pay hall costs of the State-respondent in the respective applications.


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