Implications of Article 309 Of The Constitution of India in Services Jurisprudence

 Chapter-1(Recruitment)

This Article is indented to demonstrate the various important aspect of Service Law so that it will be of some help to any practicing Lawyers in service side. First & foremost the area in service jurisprudence in India is Largely on Services rules made under the provision’s of India Constitution under Article 309 , It is very important to note here that mainly the issues which comes before court’s are regarding to Condition of Services of any Employee. Now the question arise that What are the condition service of an Employee, The condition of service is not something which can be framed by a rigid Formula, But it includes the condition regarding payment of salary to any Employee, various perk’s Given to any Employee, Suspension/termination of service etc.

It is pertinently Important to keep one thing in mind that dispute of service nature arise whenever a relationship of any Employer & Employee starts Which is known as starting of any employment ,whenever any Employer comes with in the definition of Article 12 of the Constitution of India or in other words any employment which is going to performed by any government servant in that case the method of Recruitment and condition of service of that particular appointment is going to be regulated by Article 309 of Constitution of India and in accordance with provision of Article 14,15and 16 of India Constitution. Article 309, Especially speak about the process of Recruitment and condition of service under state and center whereby rules needs to be framed in their regard subject to the provision of Constitution of India. Any rule formed by center or state government under Article 309 must be in accordance with the constitutional mandate because a public employment starts with the process of Recruitment and appointment of any employee on a particular post, interestingly the starting words of Article 309 are very important says Subject to the provision of this Constitution the reason for mentioning these words is to tell that any rule/law must be in absolute terms of constitutional scheme and must follow the mandates of Article 14,15and16.

A question now arises that how an in what manner a process of Recruitment is to done in accordance with Article 309 of the Constitution so first let us see and look up to the definition of the term Recruitment under service jurisprudence “Recruitment”: Means calling up of application by way of an open advertisement. The another important element in a Recruitment process after calling up of application is to appoint an eligible candidates by a fair and impartial written exam or interview or any other rational criteria for judging the merit of a candidate who have applied in response to the advertisement [UPSC vs Girish Jayantilal Vaghela(2006)2 SCC 482] . A very important thing which is to keep in mind is that Recruitment and appointment are to different terms Recruitment is just to initiate the process and appointment is to finally posting a person to a particular office however the word appointment is not mentioned in Article 309.[Prafulla Kumar swain vs Prakash Chandra Misra, 1993(1)SLR 565(SC)]. The importance of understanding these two words Recruitment and appointment in order to understand a fact that Article 309 says about two things i.e Recruitment and condition of services hence it is to be noted that condition of services starts only when a particular employee is appointed finally. It is also very important to see that even if the specific word “Appointment” is not used in Article 309 but it is deemed that the word Recruitment means the process of finally appointing a person and thereafter starts various condition of services.

That now we are going to discuss the various issue which comes before practicing lawyers that in what conditions the process of Recruitment can be challenged before Hon’ble Courts it can only be challenged if the process of Recruitment is not in accordance with the Constitutional scheme for more clarity let us take an example “ An employer A Is an organization running a warehouse which comes under pervasive control of government, and the said warehouse is meant to store food grains which are to be distributed for public cause, and in that warehouse vacancies arisen for some storekeepers and the said post is permanent in nature and in advertisement the appointment is said to be of contractual nature than on this ground only the process of recruitment can be challenged , if the work is of a perennial/permanent nature than on that post contractual appointment cannot be made because it violates constitutional scheme”. Not only this there may be some others factors in any recruitment process which may be questioned before Hon’ble court and some of those factor are outlined below-:

1. That If on a vacant post the advertisement was not made open to all eligible candidates .

2. That if reservation is not applicable in the process of appointment of any sanctioned post.

3. That if the process of appointment disclosed in the advertisement is not done in accordance with the rules framed under Article 309 of Constitution of India.

4. That it is also obligatory on the part of employee to disclosed whenever any process of recruitment is initiated that what is going to be the nature of said employment that weather the post is of a contractual(Adhoc, temporary etc)or of a permanent nature

(NOTE-: All the material discussed in the present Article and rules framed under proviso to Article 309 is only applicable on Government servant, Dharmandra Prasad vs Sunil Kumar (2020) 2 SCC 146)

But curiously state is doing vice versa very often than not it is seam that on regular posts appointments are done either back door or by an irregular process, or by any process which is not known to law these appointments are also hampers on the future prospective of Employees, the same concern also raised by Hon,ble Supreme Court in the famous judgment of “ Umdevi”. The Another very important thing in Article 309 it speaks About the condition of service which will be discussed in upcoming articles.