2013 Supreme(Bom) 721

High Court of Judicature at Bombay
A.M. KHANWILKAR, MRIDULA BHATKAR, JJ.
Sonali Pramod Dhawde
Versus
Central Bank of India & Another
Writ Petition (LODG.) No.2825 of 2012
Decided on : 01-04-2013

Headnote:Constitution of India, 1950 - Articles 14 and 16 - Practice of recruitment by campus interview.

       Petitioners, even not pursuing education in any specified colleges/institutions wherefrom students were interviewed for campus recruitment, can challenge campus recruitment method being impermissible and ultra vires constitutional scheme. - Reverting to the principal issue Court may accept the stand of the respondents, for the sake of argument, that the process of appointment through campus recruitment is a distinct mechanism and class by itself. It would then follow that the petitioners ’who are no more pursuing education in any college/institution, much less, the specified colleges/institutions from where the students are interviewed for campus recruitment, cannot raise any issue of discrimination. However, that does not preclude the petitioners and similarly placed persons from questioning the policy of the respondent-bank. which permits such recruitment method against public posts, being impermissible and ultra vires the constitutional scheme. For, it impinges upon the fundamental rights of persons who are otherwise qualified, eligible and suitable for being appointed in the selection process for direct recruits through advertisements - no matter the insignificant percentage of appointment made through campus interview, as i n this case 12.27% of the total intake of officers of the respondent bank during the relevant period.

       Constitution of India, 1950 - Articles 14 and 16(1) - Equality of opportunity.

       Since equality of opportunity to all in process of recruitment in Public Sector Undertakings is constitutional mandate hence recruitment by campus interviews is violation of constitutional mandate. - In the present case petition ought to succeed at least to the extent of declaring the stated recruitment policy of the respondent-Bank dated 5.3.2009 as also the Circular issued by the Government of India dated 22.2.2005, which provides for recruitment of officers in the public sector banks against "permanent vacancies" on "regular basis" by resorting to campus recruitment/interview method and not by inviting applications from public at large by issuing public advertisement, being illegal and unconstitutional.

       The respondents are directed to forbear from making any appointment against the permanent vacancies on regular basis by resorting to campus recruitment/interview mechanism hereafter and if such appointment is made, the same will be non-est in law.

       Issuing of open public advertisements for inviting applications from "all" the eligible persons to compete for selection on merit for being appointed against the public posts, is the only regime which guarantees equality of opportunity under Article 16 read with Article 14. There is injunction against the State to refrain from interfering with the fundamental rights of equality of opportunity in the matter of public employment. Neither the Parliament nor the State Legislature can abridge that right.

       On the other hand, the Constitutional scheme impels the State to make policies and laws to uphold fairness, transparency, equality and also further the cause of the weaker segments of the Society, in the matter of public employment.

       The Constitutional Scheme does not envisage appointment through campus recruitment/campus interview against any office under the State. Wide publicity of the process, its transparency and fairness is the hallmark of equality of opportunity in the matter of public employment. Thus, the inviolable right enshrined in Article 16 can be secured and consummated only by giving wide publicity to invite applications from "all" eligible candidates.

       The selection process, limited to the students from specified institutes, is bound to be replete with the element of arbitrariness; and antithesis to the right of equality of opportunity in the matter of public employment - which must be fair, just and equitable.

       The State must resort to HR initiatives for upgrading the proficiency and efficiency of its officers rather than finding out easy solution of appointments to public posts through campus recruitment. There is no guarantee that favouritism and other malpractices will not be the buzzword in that dispensation, keeping in mind the high number of public posts and employment market of the public sector undertakings in India.

       That may lead to the inevitable problem resulting in "Spoil Systems".

       Notably, there is no empirical data that all the organisations - be it private or public sector undertaking - who have resorted to method of campus recruitment of freshers have always yielded better profits or that those persons were instrumental in any turn around plan or success of the organisation. The success of any business organisation essentially, is linked to strong leadership, planning, organising, execution and HR initiatives taken by it. Further, new business methods and’ techniques can be acquired by consulting professionals of high order, which module can be then executed under proper supervisio n of the experts.

       Large number of Indian students are studying abroad for acquiring higher qualifications. The institutes in foreign countries are no less than any of the specified premier institutions in India. Those students either have gone abroad by choice or because of necessity due to not getting admission in the premier institutions/colleges in India. E ven these students will be denied equal opportunity in the matter of public employment.

       The success of the PSBs would largely depend on the political leadership, federated governance, shared enterprise frameworks and HR initiatives and not because of the candidates selected from few empanelied colleges/institutions through campus interview. Moreover, employment of such candidates is no guarantee that the efficiency and performance of the organisation will be enhanced significantly.

       Then, certainly, that option is not good enough, so as to trample the fundamental right of equality of opportunity in the matter of public employment, guaranteed to the persons possessing minimum prescribed qualification. On the other hand, the State and Instrumentalities of the State are not only under Constitutional obligation to secure justice - social and economic but also to deliver equality of opportunity in the matter of public employment to all similarly placed persons.

       The argument of liberalisation, autonomy or continual competition with the private sector; tapping of candidates from specialised field or better qualified candidates through campus recruitment; the candidates selected through campus interview are a class unto themselves; that method has a reasonable nexus with the object sought to be achieved for absorbing talented candidate from reputed educational institutions and utilising their expertise to compete and match the performance of private and foreign banks, all these can be no basis to uphold the impugned action of the respondents Bank.

       Abridgment of fundamental right of the citizens of equal opportunity in the matter of public employment cannot be whittled down in the name of better candidates are available to the Bank through campus interview.

       No doubt, the State and the Instrumentalities of the State, are required to engage in business or any commercial venture and have to face stiff competition with private sector. However, that does not mean that they would get licence to trample the fundamental rights guaranteed to the citizens of this country by the Constitution of India.

       Even the Parliament cannot legislate on the subject that would impinge upon the fundamental right of equality of opportunity in the matter of public employment.

       Secondly, no empirical data has been produced, to persuade the Court that the policy of filling up of public posts by resorting to campus interview method is imperative and has become indispensable. Court is not impressed by the claim of the respondents that the said dispensation fulfils the tests of justness, fairness, reasonableness and having nexus to the object sought to be achieved. In absence thereof, it is not possible to countenance the argument of the respondent-Bank that the distinction made by them of the class of candidates is real and substantial.

       Constitution of India, 1950 - Article 226 - Delay and latches.

       Writ petition filed in year 2012, challenging Recruitment Policy allowing appointment by campus interview process formulated in year 2009 and implemented since then, cannot be thrown out at threshold on mere technical ground of latches. - Reverting to the preliminary objection that this petition suffers from laches because the policy regarding recruitment through campus interview is in place since year 2009 and secondly, that this petition has been filed only to overcome the deficiencies noticed in the companion writ petition during the arguments, none of these objections commend to us. Firstly, the fact that this petition, filed in the year 2012, takes exception to the policy formulated in the year 2009. The fact that the said policy has been implemented since then, does not and cannot denude the petitioners of their remedy to complain about the infraction of their rights guaranteed by the Constitution. There is nothing on record to indicate that the decision to adopt procedure of recruitment through campus interview to fill in the vacancies earmarked for direct recruits, which was given effect to since 2009, was in public domain. The petitioners herein cannot be expected to have access to that information. The petitioners on affidavit have stated that they got knowledge about the same only after reading news item regarding pendency of other petitions in the Court, which appeared in the local newspaper very recently.

       There is no reason to doubt the correctness of this statement. Even otherwise, the argument of laches because of implementation of the policy for last around 3 years, is too hypertechnical argument to throw out the petition at the threshold.

       Constitution of India, 1950 - Article 226 - Maintainability of writ petition.

       Writ petition, challenging recruitment policies, which denied rights guaranteed under Part III of Constitution, is maintainable. - The next objection taken by the respondent-Bank, is that, the petitioners have abused the process of Court. In that, this petition has been filed after several hearings of writ petition and moreso, because the petitioners in that petition realised that they had no locus standi to pursue the grievance made by them. Indeed, the companion writ petition was filed in April, 2012 and was heard on different dates. However, that does not mean that the petitioners, who otherwise claim to possess requisite qualifications, as per the recruitment policy, can be denuded of pursuing the challenge in the present petition.

       Moreso, when the grievance is not about son irregularity committed by the State Authorities in the matter of public employment, but raising issues which go to the root of authority of the State and Instrumentalities of the State to adopt policy, which is in the teeth of the rights guaranteed to the citizens of India under Part III of the Constitution of India. Court is not impressed by the objection under consideration, which if accepted, would be taking a hyper-technical view. Similarly, the argument that this petition has been filed only to cover up the deficiencies noticed in the companion writ petition during the arguments, also does not commend to Court. Inasmuch as, the petitioners have invoked remedy under Article 226 of the Constitution of India, in their own rights and complaining of infraction of their fundamental rights due to denial of equal opportunity in the matter of public employment. Accordingly, the preliminary objection under consideration is devoid of merits.

       Constitution of India, 1950 - Article 226 - Non-joinder of necessary parties in writ petition.

       Non-joinder of selected candidates through campus recruitment process, is not fatal to petition challenging recruitment policy allowing appointment by campus recruitment method. - As regards the next preliminary objection regarding non-joinder of necessary parties, even this objection is devoid of merits. Inasmuch as, the petitioners are not asking for termination of the officers already employed by the respondent-Bank through campus recruitment process in the past. The petitioners are essentially praying for quashing of the recruitment policy allowing appointment by campus recruitment method as formulated by the Bank, being unconstitutional, illegal and against the fundamental rights enshrined in Articles 14, 16 and 21 of the Constitution of India. As a consequence of this declaration, direction is sought against the respondents to henceforth forbear from resorting to campus recruitment method for filling up vacancies of officers in the respondent-Bank earmarked for the direct recruits, from amongst the students of the selected Institutes/Colleges. In other words, the petitioners are claiming relief of general nature against the State and not against individual party. In that case, non-joinder of selected candidates is not fatal. [See GM, South Central Railway v. A.V.R. Siddhanti, (1994) 4 SCC 335].

       Further the candidates who are "yet to be appointed" against the public posts of officers or "absorbed in services" of the respondent-Bank, can and will have no vested right to claim that they must be appointed de hors the constitutional scheme. In either case, joining of such persons as party respondents to the present proceedings being necessary or proper parties, does not commend to us.

       Constitution of India, 1950 - Article 226 - Practice of recruitment by campus selection.

       Failure of petitioners, challenging practice of recruitment by campus interviews, to produce requisite qualification certificates during arguments, not renders writ petition liable to dismissed at threshold. - After having perused the pleadings and the accompanying documents and also considering the oral arguments, the foremost question that needs to be considered is about the locus of the petitioners.No doubt, the petitioners have vaguely stated in the petition that they possess educational qualification and are eligible for employment with the respondent-Bank as per the recruitment policy dated 5.3 .2009 and that inspite of being called upon by the respondent-Bank to substantiate the same by furnishing inspection of the relevant documents, have failed to do so.

       The respondent-Bank had insisted in writing for inspection because,, as per the Bank’s recruitment policy for appointment in Middle Management (Grade II) (Main Stream), the qualification required is first class Post Graduate degree or first class Graduate or any equivalent qualification recognised as such by the Government of India and minimum second class MBA.

       The Graduate or the Post Graduate degree must be from a University recognised by the UGC and the MBA degree should be from a recognised Institute/University. As aforesaid, the petitioners have failed to clearly assert that they possess this qualification, but have stated on affidavit that they possess requisite qualification and thus are eligible for employment in the respondent-Bank. Merely because the petitioners’ Advocate expressed inability to produce the Degree Certificates due to paucity of time or that it were not produced at least during arguments cannot be the basis to throw out this petition at the threshold. The petitioners have justly relied on the exposition of the Constitution Bench of the Apex Court in the case of D.C. Wadhwa (Dr.) v. State of Bihar, (1987) 1 SCC 378. In paragraph 3, the Court has observed thus :

       "3. ...............The rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the executive or any other authority should be within the constitutional limitations and if any practice is adopted by the executive which is in flagrant and systematic, violation of its constitutional limitations, petitioner as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice........."

       Accordingly, the preliminary objection under consideration is negatived.