Case: Krishan Chander Nayar Vs. The Chairman, Central Tractororganisation And Others

would not be desirable to reinstate him."The careless and irresponsible way in which the affidavit has been drawn up is further illustrated by the following statement in paragraph 13 of the affidavit :"Referring to paragraph 11 of the petition it is submitted that the petitioner is not entitled to move this Honble Court under Art. 32 of the Constitution after his application for special leave before this Honble Court from the judgment of the Punjab High Court, Circuit Bench, was dismissed on the 26th of April, 1957, and the order passed by this Honble Court dismissing the said special leave petition on the 26th of April, 1957 is final between the parties and should be treated as res-judicata against the present application."This is reiterated in paragraph 23, which runs as follows:"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 Honble Court as he has sought to do. The petitioner has already exhausted all his remedies and this Honble Court was also pleased to dismiss his application for special leave and as such it is submitted that the present application is wholly misconceived 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 special leave to appeal from the judgment of the Punjab High Court, Circuit Bench, and dismissed the same by its order dated April 26, 1957. As a matter of fact, 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.4. As already indicated, the affidavit, in answer to the petitioners 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 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 respondents had put a ban on the petitioner being taken into Government service. The answer of the respondents is, in effect, that the petitioner 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 petitioners 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 continues, 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 therefor, 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 on an equal footing with other candidates not under such a ban. Of course, the ban imposed by Government should have a reasonable 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 employment of a certain person, under the Government would certainly amount to denial 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 respondents does not indicate the nature of the ban, and whatever may have 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 are, therefore, not in a position to say that the reason for the ban, whatever its nature, had a just relation to the question of his suitability for employment or appointment under the Government.5. It is clear, 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. 16(1) of the Constitution. So long as the ban subsists, any application made by the petitioner for employment under the State is bound to be treated as waste-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 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. The ban complained of apparently 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.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]It is clear that the averments, quoted above, are intended to convey the idea that this Court dealt with an application for special leave to appeal from the judgment of the Punjab High Court, Circuit Bench, and dismissed the same by its order dated April 26, 1957. As a matter of fact, 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.4. As already indicated, the affidavit, in answer to the petitioners 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 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 respondents had put a ban on the petitioner being taken into Government service. The answer of the respondents is, in effect, that the petitioner 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 petitioners 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 continues, 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 therefor, 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 on an equal footing with other candidates not under such a ban. Of course, the ban imposed by Government should have a reasonable 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 employment of a certain person, under the Government would certainly amount to denial 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 respondents does not indicate the nature of the ban, and whatever may have 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 are, therefore, not in a position to say that the reason for the ban, whatever its nature, had a just relation to the question of his suitability for employment or appointment under the Government.5. It is clear, 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. 16(1) of the Constitution. So long as the ban subsists, any application made by the petitioner for employment under the State is bound to be treated as waste-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 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. The ban complained of apparently 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.