 So you were also a trade unionist? I was in the bank employee's trade union movement from those days he has been my comrade, one consistent comrade. So we will start. So good evening friends and as they say sometimes good things are delayed. I remember what we say in the bamboo story that it doesn't grow up for good five years and then it suddenly shoots up. And it is contrary to the today's date when the topic is appointments, the duties and responsibilities etc to be discussed in the of the appointing authority. I would say taking an appointment with Mr. P. S. Raja Gopal is always easy because his first passion as they say is always to share knowledge amongst not one but all. I was just reading a newspaper it said that he was friends of many but loved by all. So same is with Mr. P. S. Raja Gopal that it's friends of many and loved by all the way he takes the topic and the human service he provides to the nation to understand different aspects and more specifically on service now. He will be remembered for all times to come and since we are already late I would request sir to share his knowledge over to you sir. Thank you because in fact I wanted to title this topic as making up the relationship because when we spoke in the earlier sessions about selection preparation of the select list and all that I was very clear that recruitment is prior to appointment and I also said that while appointment, recruitment precedes appointment appointment need not follow every selection or every recruitment. Now let us try to analyze what are the powers, responsibilities or obligations of the appointing authority. First and foremost the selection is prepared by the selecting body even if it is public service commission or staff service commission or staff selection board as is called in some of the states. That select list is not binding on the appointing authority. There are various reasons why it does not bind. Most fundamental reason why the select list does not bind in the appointing authority is that ultimately for any right or wrong appointment way it is the appointing authority who is on service. Another aspect of the matter is while selection can be delegated to an expert body. I am when I am saying selection, both for promotion or selection even for direct recruitment any selection subject to limitations in the rules. It can be delegated to a selecting body of experts but appointment or making of appointment is a matter or is a power that can never be delegated. It is appointing authority and appointing authority alone who can make the appointment. Having regard to this ultimate responsibility and accountability for making the appointment certain discretions to reject the select list or sometimes even to scrap the selection process itself and redo the selection process they are all vested in the appointing because the burden on the appointing authority to ensure adherence to the law is non-negotiable. It is ultimate and absolute. Therefore the first and foremost responsibility of the appointing authority when a selection list comes to him is to ensure whether select list has been prepared in accordance with applicable norms. And another important aspect is whether the selection has been made by a body which is authorized or which could be authorized to do so. Why I am using the second phrase which could be authorized is if the selection itself has been entrusted to an incompetent body contrary to the rules or contrary to the constitutional norms then that is his second opportunity for the appointing authority to look at it. Yes, I have received the select list whether entusiasm of selection to that body itself was legal. The importance of this principle can be realized when we refer to the provisions regarding the appointment of district judges in the constitution and Article 233 governor is the appointing authority for the post of district judge but the obligation of the governor is to make appointment of a person as a district in consultation with the high court concerned. An interesting case arose before the supreme court way back in 1966 say under the UP district judges recruitment rules government would appoint a selecting body it could be a sub sub it could be any committee or it could be even the public's service commission that makes no defaults and that selecting body makes the selection and submits the select list to the high court then high court will forward that select list to the governor and governor makes the appointment. When this question came before the supreme court over the validity of the rules supreme court observed that look here is a recruitment rule which in effects which in effect reduces the high court to a transmitting body it does not make the selection it does not have much power either to alter or redo the selection the real power of selection is vested in the selection committee appointed by the governor meaning garment and garment appoints technically it has consulted the government but in the high court but in substance it has not consulted the high court because high court is reduced at the transmitting court then supreme court very succinctly put one principle that is let me say A is the appointing authority if A is empowered to appoint B in consultation with C in that case in consultation with the high court that principle of law can be violated in two ways one is very simple making the appointment without consulting C second is even more dangerous or even more arbitrary A can violate the norm of law in appointing B by consulting C and also D on that ground that it has not only consulted the high court but it has also consulted and taken advice of the selection committee the rule was struck down and all appointments made under the rule were declared as void look at the catastrophic effect it has all over the country all the decision judges who had been appointed under such a rule were declared to be void then of course the constitution was amended by inserting article 233 capital A saving those appointments and then every state changed the rules and in most of the states the producer position is selection is also interested to the high court itself so that no third party intervention is there high court selects draw up the select list then forwards it to the government and governor makes the appointment therefore the first and foremost beauty of the appointing authority before making an appointment to construct and conform whether recruitment rules have been followed whether selection process stipulated in the rules have been followed and whether the recruitment has been done in accordance with constitutional orders therefore it is not only the rule book it has to study the larger values of the constitution also before making the appointment if the answer that the appointing authority gets to any one of these three questions is in the negative the disciplinary the appointing authority has over to reject the select list now there are any number of declarations of law or repeated declarations of law that select list is only a recommendation to the appointing authority it is not a command it is not a dictate it is not a non-reliable list submitted to the appointing authority for him to simply act on most of the select list they carry a label following the list of candidates from suitable for appointment one two three four in the order of merit of course keeping in mind the reservation all those things are included but the real suitability for any public employment is not how many marks you secure not what rank you got not how intelligent you are but more importantly the suitability for holding a public office will have to be decided on several other factors most important of them I may just give a short list that is is what is his background whether he has been involved in any shady activities suppose an advocate is erudite excellent and very very effective arguer of the cases and performance in the court if it is taken merit wise in a stand-up or whether he would be eligible or suitable to be appointed as a jet whether it is high court or whether it is a district court or whether it is of civil court or if he has or if had if he had some shady association with certain characters who are smeared with label of criminality that is one part another part is whether every such association of a candidate would disqualify therefore a balanced view has to be taken by background check of each candidate included in the select list whether he has any association with any banned organization whether he had suffered any conviction in the criminal case or launching of a criminal case against all these which go to find out go to form go into the making of an opinion about the suitability is simply called antecedent verification or character justification if the appointing authority on such verification comes to conclude that he is not a desirable candidate to be appointed normally in by the presented terms it is called as a vigilance clearance vigilance clearance or background clearance this is the important thing that will have to be done by the appointing authority of course these days in certain appointments the matter has been taken to this aspect of the matter has been taken to an extreme level I hear rumors or murmurs and normally these rumors should be true that some candidates appointment has been rejected on the ground that as an advocate he had appeared for a criminal to put it in the mildest term to say that an advocate becomes bad because he has appeared for a person whom the establishment thinks is bad is outrageous therefore a balanced background check to serve the objective of having the most upright persons in public service is the responsibility of the appointing authority if the background checks is negative then that candidate can be eliminated then another obligation or duty of the appointing authority is to check veracity and genius of the reservation plans made it made by the candidate that is an aspect which normally he is interested to specify agencies like the verification committees established by law by various state enactments there are cash verification committees then there are the names may differ from state to state but Maharashtra has got a very comprehensive law on this verification of claims of reservation particularly the social reservation that is scheduled cash scheduled files and other backward classes if the designated authority does not confirm the cash or income claim of the candidate on the basis of which the candidate is selected then the appointing authority is duty bound to reject his candidates these are the individual cases then what is troubling the appointing authorities in the present day is the mass malpractices committed by the selection committees themselves of course normally we blame the candidates look he has been selected by fraud but instances are not lacking and in fact these instances are many where the selection committee is a party to the fraud even without the fraud there are cases and cases where mass malpractices mass copy would have occurred in the written exam even that is a matter which the appointing authority will have to verify in no state these days these competitive examinations conducted to select candidates for civil services goes without an allegation of malpractice there would be allegations there are different ways of looking at these allegations one view can be look after all one out of hundred applicants get selected therefore the non-selected candidates usually complain that is the selection process in which he had that is one way of looking at another extreme is that saying that every complaint is true then no recruitment can can take this truth lies in between these two extremes sometimes by the tone tenor and the reaction in the society appointing authority will be able to make out whether a case is called for investigation of allegations of malpractice this malpractice is mind boggling now with bluetooth and all i don't know how an honest fair examination is ever conducted i am told now the things have gone to such an extent that even dress code for the examinations which was never heard of in the past dress code for the examinations in fact i used to take the competitive examination that is a certified associate of indians for bankers and all that the exam would start at seven o'clock in the morning think of a person attending the examinations in november in delhi at seven a.m in the morning he cannot start out of the room without three or four sweaters on his body particularly if he's a person from outside delhi who has gone to not be here for the first time i have suffered that or i have enjoyed it in the process because once the suffering is over you feel well hope pleasant it was it was a challenge i would say now you look at the dress code you cannot wear shoes and go to the examination bear as the minimum dress you have to wear then the supervisor and envisioning staff they are allowed to check whether you are carrying a mobile or whether you are carrying bluetooth i simply do not know what is the difference between a bluetooth and a earplug because i have never used bluetooth nor i have used any earplug but my colleagues who are younger in age they are experts in using this bluetooth and all if the if some case comes where i have to argue about the bluetooth malpractice in the examination i have to ask my colleague a giant please tell me what is this bluetooth and all i finish please tell me what is this bluetooth thing and how the answers can be got from outside by using a clue several devices have come which would yield the malpractice in the exams when something is some component of malpractice comes to the notice of the appointment after an inquiry i won't use the word thorough inquiry because thorough inquiry if we did in our country thorough inquiry means launch an FIR or FIR have the investigation completed file a charge sheet then see whether they they are convicted all this will take decades and the appointment process cannot wait till then therefore have a credible quick inquiry if that inquiry reveals there are malpractices the next responsibility of the appointed authority is to find out whether the malpractice is localized to the extent general integrity or legitimacy of the recruitment process has not been lost but there are a few pockets of malpractices which can be easily identified and that cancerous part can be removed without causing harm to the entire body of selection this is where individual delinquency or identifiable group delinquency is involved the other extreme means prima facie investigation disclosures that there are cases of mass copy maybe not in every examination center but in substantial number of samples substantial when i am using the word substantial in relation to the recruitment process it is not majority substantial means sizable number this exercise will have to be carried out by the appointed authority because if the vitiating practices are widespread which are such that the legitimacy legitimacy of the recruitment process is lost then appointing authority has not only the power to cancel the select list and go for fresh selection but he has a duty to do so because in a democracy there is no power without a corresponding duty the appointing authority does not have any prerogative he has right power duties and obligations and the supreme court in sankrishan das case said inclusion in the select list does not give an indifficible right to be appointed if certain number of vacancies are notified there is no obligation on the appointing authority to fill up all or any of the vacancies mark the word any of the vacancies in another different supreme court said select list is only giving you eligibility to be considered by the appointing authority for being appointed in accordance with the order of merit indicated in that select list meaning thereby they select the appointing authority after looking at the select list after investigating it with relevant factors he may cancel the entire select list or he may even scrap a part of it but effort let us remember this when appointing authority has got a power to disagree with the list and throw the list to desperate he cannot arbitrarily throw it into the desk he has to be reasonable he has to be fair and the decision of the appointing authority either to order retest or to order that the operation of the select list will be limited to this extent and not be on it cannot be without reason it has to be reason it has to be legitimate and it has to answer the test of proportionality no there are cases and cases and cases where this court has examined this aspect whether in a given fact part of the selection process suppose there are 100 centers where written examination is administered and out of that the reasonable input that the appointing authority this is resources it was the malpractice was there but was restricted to these two centers there was no negotiating for a factor like leakage of question papers or mass copy rampant all over the country in such cases a partial redoing of the selection process can be out but where the malpractice is rampant and system the entire selection possibly have scrapped and test with an operation now two three examples would drive home this point in greater clarity in railway recruitment board case that is all india railway recruitment board the vigilance commission report vigilance report indicated that there was indications of there were indications of systemic malpractices that is system itself was diverted or hijacked by unfairness in such a case the high court held except 62 candidates on whom there is a evidence of malpractice in the aspect of other candidates there is no malpractice therefore reversing their supreme court side they appoint the options one is to examine very if it is the only only the localized to scrap that part or to scrap the entire thing or for want of evidence conduct the entire they uphold the entire question having regard to the facts and circumstances in this case the high court could not have interfered with the railway board decision of scrapping and ordering entire leakers at the same time there are cases where like rajesh and all where it is at the honest candidates will have to be protected but present tendency appears to be where the recruitment process is not legitimate scrap the entire thing and read within this of course the vednus paris principle of proportionality will have to be applied in one case where 135,000 candidates took the resignation there were here some evidence of 169 candidates having malpractice it comes to slightly more than 1000 supreme court to obtain the strapping of the entire recruitment test on the ground that the malpractice of such a nature that it cannot be set with certainty that 169 and nothing more therefore and all these principles have been considered and in the latest judgment rendered by larsheep this is d.y chandra chowd in sachim kuman versus delhi subordinate service selection court all possible types of malpractices and the extent of scrapping or redoing to be ordered with appointing authorities that's it of course that was a case where between written examination and interview there were five years delay and delay itself was used to manipulate interview call letters instead of sending them by usual mode of communication they were sent electronically email or whatever but it was sent in such a manner that not even half the candidates called for interview could attend the interview that is where I said where the selecting body itself commits malpractice or is a major partner in malpractice there also the full scrapping of the recruitment process has been approved in that case the number of candidates who were ultimately appearing for the interview they in the final examination and in the interview were only a fraction of the then there is these are the powers to he can also cancel the appointing authority can also cancel or direct redoing of the select list without ordering redoing of the selection process where the determination of merit is not in accordance with the recruitment process or where the reservation matrix has not been formed another question on with the appointing authority has a duty to apply his mind I was telling he has to ensure that rules have been complied in one case what happened was the recruitment notification was issued specifying certain number of posts for general merit and certain number of posts as result posts when the recruitment process was on that is after the written examination results of allowance reservation rule underwent a change it does not amount to be changing the rules of the game because the rules for testing the merit remained the same because of this general can general merit vacancies came down and reserve vacancies went up that was notified and there was no stay so the selection process went on select list was drawn up subject to the ultimately the change in reservation was upheld because of which certain lower placed candidates in the general merit category had to go out of the selection they claimed appoint appointing authority refused and Supreme Court upheld it saying that when there was a wrong figure quoted in the advertisement appointing authority has a duty to has a duty and an obligation and the right to correct there are cases where after the recruitment process is initiated the government withdrew the recruitment process on valid grounds say take a case where take a case of motor vehicle incident some of the states still have the basic qualification as diploma in engineering the diploma in automobile engineering today what is the value for a post-ministered diploma when better educated automobile engineers are it is possible after initiation the recruitment process the appointing authority may feel that it is safer and it is desirable in the interest of the state that qualifications will have to be changed for which change in recruitment is required in such a case it is open to the appointing authority to withdraw the recruitment notification itself because it is in the larger public interest that recruitment who is amended and better qualified candidates are appointed therefore the appointing authority has got all these powers power to disagree with the select power to annul the recruitment process either in park or fully power to withdraw the recruitment notification itself these are all the powers and duties of the authority the question that normally an unsuccessful candidate in the recruitment process rises before the court sees look my candidature has been rejected contrary to natural justice what is this natural justice where it is individual delinquency like one candidate being charged of using unfair means in the examination or he being favored by an examiner or he being given certain altered marks in the interview that is a case of individual delinquency where compliance with natural justice is required but in a case where there is mass scale rampant malpractice the consistent view of the court says that natural justice is not attractive this is for the reason that why natural justice is a part of fairness natural justice is also circumstance dependent please look at it from this angle also a person in this election if you have no right to be appointed or no absolute right to be appointed the question of natural justice in case of mass scale systemic failure in the recruitment process would not arise because it is a value that may be within the discretionary power of the letters or scrapping of the selection process or partial retest there are a number of cases where candidates come and the retest is ordered look I had scored 80 percent in the first test second test I do not know what will happen by itself courts have consistently held that in a larger interest of fairness and integrity of the selection process where it is where the appointing authority on ground of mass scale irregularities cancel the no individual who is the issue from the union territory of syndicate a very interesting case came up for this that is union territory of syndicate was a deal box selection had been made by a selection from that skeleton list was trapped did not was not accepted by the union territory of syndicate union territory at this position the question rise was selected prepared by a selecting body cannot be scrapped without issuing notice and hearing this election selection committee members supreme court simply said by submitting a select list selection committee members that do not acquire union right therefore there is no need to hear the natural justice the argument of natural justice can go to a lawful extent the glorious example of that lawful extent is selection committee saying I am adieu because my select list has been scrapped without hearing there cannot be a greater joke in the service jurisprudence and it was rightly set up set up not by the supreme court another important power or a limitation I would say on the appointing authority is that sometimes the selecting bodies are the more requires the selecting body to publish an additional list or a waiting list or even without a rule the selecting bodies submit additional yes law says in certain circumstances to a limited extent stipulated by the rules the waiting list can be offered but most important aspect of the appointing authority has to bear in mind except where the rule permits the power of the appointing authority ends the power of appointing authority to appoint ends the moment notified number of vacancies rising after that the select list cannot be used as a gold mine to be mining and mining and mining the letter there is a then there is something called as followed vacancies select list is published some people do not join therefore what should happen to vacancies which remain unfilled because of some people not the general rule is it has to be carried forward to the next week there are a few cases which give very interesting insights into power of the appointing authority a very interesting case about chancellor appointed one person as vice chancellor of the university after due selection by the search committee or whatever it is after issuing the appointment order because we should be grateful to these type of people whom we condemn as sadists or whom we condemn as sometimes busy bodies somebody proposes a notice of the chancellor in the morning in the newspapers it appears so and so has been appointed as vice chancellor same day after the information was issued by the chancellor that there is an FIR pending against him in such and such a position which had serious implications about suitability of the candidate for appointment as vice chancellor appointment order had been issued immediately the chancellor withdrew the order of appointment it was telling saying that once having found me fit once having appointed me the chancellor could not have withdrawn my order of appointment without notice and without hearing me supram koth aradati i am sorry saying the appointment had not come into effect yet before unless you assume office for pursuant to that order of appointment appointment is not effective and held prior to the appointment coming into effect the appointing authority has over to withdraw the order in other case and analogy was given if after a joining duties also if the probationer can be disturbed without notice why not a person why not a person's appointment be cancelled without hearing him before he joins therefore my friends the appointing authority has a wide spectrum duty duty it is he is the kingpin in the sale ensured in that there is a transparent lawful selection process rule of recruitment is honor koth aradati is fulfilled the suitability of the candidate apart from merit merit is only a part of suitability or to put it differently qualifications prescribed in the recruitment rule gives the eligibility to participate in the recruitment process finding a place in the select list gives an eligibility for concentration by the appointing authority and it is for the concentration of the it is after the concentration by the appointing authority a person can be said to be suitable for all these aspects will have to be looked into by the appointing authority at the same time courts have cautioned courts have held tinkering with the select list or mutilating the or scrapping the selection process or however high the power of the appointing authority may be it cannot be used arbitrarily unreasonably or disproportionate these are the some and substance of powers and duties of the appointing authority and beyond this also there could be some duties there could be some application which arise in a given case situation they were pleased remember inclusion in select list is not the end of selection process selection process continues after the select list is submitted but this time the selection process by the appointing authority they were always recruitment and appointment of two different things i think i have taken a vote on one of them i think i have i am at the end of my time quota therefore now i requested uh because so neither the quota is over neither the rota is over the the gamut of quota rota is a very intriguing subject which we will take with you i think from next chapter onwards we will go to probate reservation then probation and confirmation then comes your quota rota rule and senior quota rota rostro point rostro point rostro point will come in two things one is where rota is there then you go rostro point and in reservation there is a rostro point yeah then reserve rostro point is not a seniority point a lot of challenges lot of challenges are there in that area and it is a difficult area where my personal experiences study is slowly deteriorating i won't say uh study has vanished but the type of study is required both by the judges and also our doer gets is lacking in some aspects when it comes to application of quota rota rostro in the matter of senior in fact it's uh quite a reading subject and normally those judgments are so big that after you read it then normally a lawyer will get confused as to how it has to be done because you will keep on reading those judgments then some judgments some extract no that is problem the problem is reading the extracts because what happens is though apparently these seniority judgments appear to be diversion if you go deeper into them there is not divergence at all wherever the courts have had to go quota room is unable to adjust those are cases where recruitment itself rule itself said generally or usually like that some leeway to escape the rigor of the quota was there where the rule is in definitive terms the courts have taken a view that as long as quota room is in existence the executive has no discretion to deviate from we will talk about that i am only telling because don't have that impression that the judgments on seniority are vague they are not vague at all no i'm not for a moment saying vague i'm saying that's all this thing so and confusing no not even confusing i'm saying it is a hyperlinking let's assume we take indra sani indra sani will take to vijesh kariya vijesh kariya will take to you sort of tawzy sort of tawzy will take to laxmi nirayan and normally all judgments are minimum 50 pages that is where we confuse post base and reservation with post base seniority please read adjit singh too though the one aspect of adjit singh too was legislatively overruled by providing for consequential seniority one important statement is made in adjit singh too that is r k super wall has no application to seniority not in adjit singh too suffocates aran what is the gene aran batnagar and subsequently all india confederation of excise employees or something like that the distinction between seniority principal and r k super wall principal has been clearly explained first it was done by just is sb mujimda in aran subhubab aran batnagar subsequently that view was offered by three jet benches in all india federation of excise central excise employees but only thing is by nature those judgments are lengthy and present day tendency is not to find time to read i'm deliberately using the word not to find time to read because we want everything on a platter we are taking free option so therefore i have to read i will just tell a friend of mine he had a restaurant so he used to make indian food but he said now we all get chinese and fast food service i said that's the view of life we all switched over from two hours cooking to two minutes same as with the everything and that's why even on the youtube you will find that the video of one hour two hours will not be picked up but one minute capsules will always do well rather than going for an exercise one will say why not have some capsule which can actually deliver the results we will keep on taking the these questions meanwhile steven says in a case of tata memorial center cag report says irregularities in the appointment of five director at its units tata memorial is a grant in aid school what action can be initiated in this case so firstly cag report cannot be a definitive material to take any action because cag report is of priority maybe it is a constitutionally appointed the auditor but auditor remains an auditor it is subject to debate in the concerned legislature where the concerned department also will be having an opportunity to submit its reply and then the legislature comes to come to whether any action is required of to suppose an appointment in a grant in years institution is contrary to legal laws because of the grant given now the employer the government will be able to initiate the action required treating it as if it is a government work but when it comes to grant in aid employees usually the rules typically their service conditions will be in parameteria with or on par with this similarly ranked or similar employees of the grant therefore power to act against them is available the director suppose his term has expired nothing can be done like our civil service rules where he says where they said before if some misconduct has occurred more than four years anterior to the date of return nothing can be done no action can be done but nonetheless if there is any criminality in that those can be possible in some ways tenure appointments are concerned where the tenure is over all actions if otherwise lawful violin office will have to be valid on the de facto theory which was propounded by the supreme court in relation to a high court judge some some raju there the high court judge had remained a court judge even after his superannuation on the basis of a wrong date of birth gokara in gokara to this question arose president determines the date of birth of the high court judge in case of dispute after three years the president says this man should have retired three years ago you cannot retire him three years ago you will retire him today only in these three years which had no right to occupy the post could have passed the various judgments what happens to those judgments they will be valid on de facto theory de facto he was working as a judge and unless there is some other negotiating factor in that judgment that judgment cannot but there is an exception to this that is a provided by more modern a modern transport regional transport authority grants permits for playing stage carrying vehicles if apart from questioning rejection or grant of permit if the challenger has questioned the very appointment of the regional transport officer who is chairman of the RTA and a sort of co-parent to along with the co-parent if the co-parent is issued not only he goes but his questioned action will also therefore the de facto theory would operate in all these cases both administrative as also quasi-judicial and judicial where the decision has not been challenged on the ground that he was disqualified from holding the post the judgments will be valid the decisions will be valid there are a number of cases where vice chancellor's appointments have been held to be bad after he demoted office the of course such academic exercises normally should not be gone into that is the law but sometimes they are gone into to lay down a law Nandini says how does the selection committee treat an FIR which is cancelled by B report B report is not the end of civil level B report only means that there is not enough evidence to prosecute while dealing with such situations courts have all always made a distinction between a select list which has not been operated a select list which has been operated and appointments have been made as it happened in your Punjab Public Service Commission cases where appointments have not been made selection because the selection list goes but where appointments have been met Supreme Court made a distinction and said that you cannot analyze these appointments except where there is an individual delinquents I think that is the somewhat substance of about half a dozen judgments written by Punjab and Daivana airport followed by appeal judgments in the Supreme Court how am I right that's why there were three judges and then ultimately the five judges out here the judgment was pinned down here by Justice Ritu Bari where they segregated it all in all these selection process also another question normally arises is that if there is they said tinkering with the selection process or some malice and malafite smacks out as to whether the entire selection process would go or you can weed out the bad parts and retain the I can tell you that where that is what I was telling where you can localize and say to only to this limited extent it might have been initiated if that is the if that is the conclusion then only that part will go so for example I know a case where chief examiner had picked up a few answer scripts as part of the moderation exercise he was obliged to carry out and in all those cases few cases where he picked up and for moderation it was found that he has enormously increased the marks given by the exam in such cases coupled with other evidence it was possible to say that the the evaluation process has been initiated only to this extent then those four or 15 candidates for the beneficiaries of the unmerited benevolence and chief examiner their performance was nullified the remaining selection process went on yeah they say what is the stinking part you throw it out or as they say yes you can segregate it out until unless it becomes cancerous part yeah cut out the cancerous part until unless it becomes like a blue ink in the white in the water you get it mixed then you can't segregate then they say that the entire tertiary cancer you cannot conduct that subject that's the whole thing we'll have to so then you were discussing about venstery principle and doctrine of proportionality are intertwined what is the distinction between the two in a just a bird eye view see if you take the article 19 it gives certain rights six freedoms or five freedoms as you can call and for every freedom it is that is given by a b c d e classes two three four five six of the article 19 stipulates that reasonable restrictions can be imposed on the rights guaranteed by 19 one various classes the test that is applied is whether the restriction imposed by the parliament or by the state legislature is reasonable or disproportionate forgetting about the semantics both would mean that the corrective action you take should not be higher than what a rational person thinks is reasonable it is like this suppose there is some disturbance in one street of bandit city or the chendigas are you going to climb section 144 all over the city you may have power is it justified is it rational is it reasonable for the ultimate test whether you call it venstery principle or disproportionality is this what an ordinary man by as a person properly informed on facts would think as the necessary corrective exercise to be carried anything beyond that is disproportionate but courts while interfering with any decision of the selecting body or the appointing authority on the ground of unreasonable solve disproportionality they give certain amount of discretion in the sense two persons sometimes may not agree with what is reasonable and what is unreasonable in a given situation therefore the threshold what we call as witness brief threshold is it should not appear that the decision maker when taking a decision had given holiday to his faculties that is the in common parlance we call it as whether it was an unmerited knee jerk reaction what is reasonable what is unreasonable is very difficult to make up therefore that wetlandsbury's threshold of unreasonable is what is for example in a recruitment rule qualifications we say is for the appointing authority to stipulate that is the duty of the appointing when he is so stipulates when can the court interfere in one judgment it is said that suppose for a person to be appointed as a teacher in sanskrit you prescribe birth an atom as an essential qualification then it is pretently unreasonable and second sentence is more dangerous unless the unreasonableness is of such a huge proportion court should not interfere in one case I will ask the court they will also say that sometimes the such type of specific advertisement like of Bharat Natya with sanskrit it is also called under law a tailor made criteria tailor made criteria there is a in fact when we read the advertisement and when read the ultimate person who is appointed you and I can perceive everybody can perceive that it is it was the it was tailor made to fit a particular person to prove it in a court of light becomes difficult because of this wide what three player giants that is given to the appointing authority describing the qualifications but in those cases can we challenge if you can prove that there is malice in law and malice in law and malice in fact the malice in law is where relevant concentrations have not been taken into consideration or concentrations which are approximate is ignored in preference to considerations which are far removed or irrelevant we can challenge and if we are able to establish malice in law there is no need to establish malice in fact if it depends on malice in fact it is a difficult thing to prove but malice in law is also called as fraud on power for that reference may be made to state of Mysore versus PR Pulkarni which dealt with promotion and interstate senior talent a lot is to the new state and all that malice in law sometimes is easier to establish or it can be established malice in fact is always a difficult position because no bribe is taken by checks in this country then in that case it can be facts may speak live but circumstances don't yes sometimes facts circumstances may speak louder than anything else it becomes self speaking or self apparent yes silence may be deafening sometimes that's true now once we are talking about this as we normally keep on taking sessions with this like you remember the chronology of the law as well as of the facts what tip would you like to give to this lawyers and students of law or any other person or to create that artist remembering certain aspects there is a nothing special about it one thing we have to imbibe as a practice I would say that never enter a court without your argument in argument no don't make it clumsy by mentioning every fact you know pick up the most important four or five dates not down if you don't feel like carrying a paper note it down on the cover sheet of the file itself so that it is easy and after all your file is your file on the influence order itself you make a note which you can understand and not the entire world need understand again a statement made in that influence order write down in the margin what is the illegality write down in that very margin page number of the paper book at which evidence of the illegality you have placed evidence may be ruled a document a statement whatever it is so that more you are not required to wade through large number of pages more focused you would be and it would be easier to remember but to meet some unexpected question you should have a detailed note that you type and keep that is your reservoir in case of need but for your argument notes you may on the cover page of your file and on the influence order itself three or four sentences you write and four or five page numbers you write that is your argument a distinction between a note and skeletal note you have given i don't say skeletal note soulful note i would say because it is not a skeletal it is a soul of your case the sense of sense yes soul is the substance body may can today it will be that tomorrow it is otherwise also skeletal slightly threatening yes skeletal frightening so i have a more pleasant word soul reduce the soul of your case into the four or five noting should make on the influence order services a malpractice which is proved against a student who takes a job later as a government servant and the facts comes to a light after several years what action can be taken he can be removed by of course then you'll have to follow the principles of natural justice because he has already been appointed if the origin of his appointment is steeped in fraud no amount of subsequent events will save the appointment mantha monty order bad in inception does not get sanctified by subsequent events or as justice within the put it in ashwini kumar's case confirmation of an appointee who has no right to the post he is like decorating a still barren baby that state of marastra university also marathawada university also said that is the you cannot rectify or sanctify the order which is USB chavan state of marathawada university versus some and then badrinath zedman which said that if the structure falls superstructure falls automatically that is badrinath in fact this superstructure falling with the removal of the foundation that has been used in the badrinath that is the first judgment where it was used subsequently it has been used in anand sahab colonia managing director colon delimited versus sahab it has been used ultimately it is this if your foundation is fraudulent structure can collapse any time there neither limitation would apply nor any equity would arise nor subsequent events would come to the rescue of take the case of cash certificates a false cash certificate and the basis of it employment is enjoyed for one lifetime he retires after retirement also proceedings can be checked and pension can be stopped fraud unravels everything what we should say everything just judgment of justice school deep sink 94 thank you this is by puja by section authority though the though they make a medical board and we are selected in the final list based on the report after that no question no one questioned and challenged and no direction of high court appointment this question likely i could not quite understand the question that is what i'm saying i also tried to understand but no direction of the high court the appointing authority remedial again by same board and same board gave a different report probably means to say that she means to say that once the medical board had made a report and recommended the final list and thereafter the appointing authority again makes a another board and the second board gives a different board then what action can be taken if the appointment of second board could be established to be unwarranted then the procedure can be postponed but ultimately if the physical fitness norms stipulated in the rules is lacking there is no right to appointment in one case in the in supreme court decided case it happened the matter was referred to the second medical board contention was that constitution of second at the time of second medical board the employee had some physical disabilities therefore it was it is not proper to rely on the second board then the supreme court said after being satisfied that the at the time second board was constituted he had some disabilities it appointed a third a medical board got the report at that it was upheld therefore what remedy you can take it depends on actual facts of the case suppose there are a number of cases where second of second medical board reference is made if the reasonable apprehension is there either in favor of the employee candidate or against him that is the first medical board was not I don't say either not properly constituted or not properly opined the second medical board is not a taboo it is not like a quasi-judicial judgment if a candidate wants to reveal re-availation as a right sometimes the appointing authority may also feel that re-availation of the physical fitness is necessary yes sir so that's for the good good for the day and it's always a pleasure connecting with you and to tomorrow friends we would be having a session on how to crack the EOR exam that is by Dr. Charu Mathur and advocate on record plus a lawyer in the supreme court do stay connected with us at 6 p.m and Mr. Raja Gopal's session we will stay tuned with us we will come up with the fifth part of this thing and it's always a pleasure and that too keeping him tied up for a pro bono purposes it shows that his knowledge purpose is always good thank you everyone stay safe, stay blessed, muskaat