Case BriefsSupreme Court

Supreme Court: In a case where the family of a man was awarded invalid pension by the Tribunal despite of the fact that the man had not completed the stipulated period of employment as per the Orissa Civil Services (Pension) Rules, 1992, the 3-judge bench of R. Banumathi, A.S. Bopanna and Hrishikesh Roy, JJ has held that the qualifying years of service cannot be ignored for invalid pension. It said,

“The condition of qualifying service prescribed in the Pension Rules must be satisfied to become eligible for invalid pension and the arguments made to the contrary that invalid pension can be claimed under Rule 39 without satisfying the stipulated qualifying service mentioned in the same Rules, do not appeal to us.”

In the case at hand, the Odisha Administrative Tribunal had held that the applicant’s husband was entitled to invalid pension under Rule 39 of the Pension Rules and accordingly, the authorities were directed to sanction the invalid pension for the applicant’s husband and after his death, to settle the family pension for the applicant, after regularizing the services of the deceased employee.

It was, hence, argued before the Court that the applicant’s husband cannot be granted invalid pension under Rule 39 as the provision has to be conjointly read with Rule 47 and Rule 56 of the Pension Rules which specify the qualifying service of ten years and also the consequences for those who do not satisfy the eligibility criterion for qualifying service. It was also brought to the Court’s notice that the gratuity and other benefits and the compassionate appointment was accepted by the applicant without raising any additional claim towards invalid pension for her deceased husband.

Accepting the aforementioned submissions, the Court held,

“An employee becomes entitled to pension by stint of his long service for the employer and, therefore, it should be seen as a reward for toiling hard and long for the employer. The Pension Rules provide for a qualifying service of 10 years for such entitlement. When the question arises as to how certain provisions of the Pension Rules are to be understood, it would be appropriate to read the provision in its context which would mean reading the statute as a whole.”

Noticing that in the present case the employee did not satisfy the requirement of qualifying service and therefore the invalid pension could not have been ordered for him, under Rule 39 of the Pension Rules, the Court held,

“The different provisions of the Pension Rules cannot be read in isolation and must be construed harmoniously and the requirement of qualifying service cannot be said to be irrelevant for claiming different service benefits under the same Rules.”

Also considering that fact that the applicant never prayed for invalid pension for her husband and yet the Tribunal as well as the High Court granted her the unclaimed relief, the Court said,

“Such additional munificence, in addition to the job provided to the first respondent under the Rehabilitation Assistance Scheme for the sustenance of the deceased’s family, in our view, was unwarranted and the impugned order cannot be sustained.”

[State of Orissa v. Maju Naik, 2019 SCC OnLine SC 1548, decided on 04.12.2019]

Hot Off The PressNews

In a move to benefit skilled persons from economically underprivileged sections of the society, the Ministry of Road Transport and Highways has decided to remove the requirement of minimum educational qualification for driving a transport vehicle.

As per the rule, Under Rule 8 of the Central Motor Vehicle Rules, 1989, a transport vehicle driver needs to have passed class 8.

However, there are large numbers of unemployed persons especially in rural areas of the country, who may not have a formal education, but are otherwise literate and skilled.

In a recent meeting in the Transport Ministry, the Haryana government had requested for waiver of the educational qualification condition for drivers from the economically backward Mewat region where the population is dependent for livelihood on low-income earning pursuits including driving. The state government had submitted that many people in the region possess the required skill but not the required educational qualification, and were finding it difficult to obtain driving license.  Hence it was felt that driving being more a matter of skill than of educational competence, the condition of minimum educational qualification acts as a hindrance for the otherwise eligible unemployed youth. The removal of this requirement will open up employment opportunities for a large number of unemployed persons, especially the youth in the country.

However, while removing the requirement of a minimum educational qualification, the Ministry has strongly emphasized upon training and skill testing of drivers so that road safety is not compromised in any way. Anyone applying for a driving license will have to mandatorily pass a stringent skill test. The Ministry has emphasized that training imparted by a school or establishment as mentioned in the the Motor Vehicles Act, 1988 should ensure that the driver can read signs and perform logistical duty such as maintenance of driver logs, inspection of trucks and trailers, submission of pre-trip and post-trip records, determination of discrepancies in paperwork, effective communication to report safety hazards. 

The Ministry had already proposed the removal of the requirement for educational qualification in the Motor Vehicles (Amendment) Bill that got passed by the previous Lok Sabha. The subject was also deliberated upon by the Standing Committee and  Select committee of the Parliament.

In light of the above, the Ministry of Road Transport & highways has initiated the process of amendment to Rule 8 of Central Motor Vehicles 1989 and the draft notification in this regard will be issued soon.

[Press Release dt. 18-06-2019]

[Source: PIB]

Ministry of Road Transport & Highways

Case BriefsSupreme Court

Supreme Court: The bench of Abhay Manohar Sapre and Indu Malhotra, JJ  has held that there cannot be a uniform qualification or/and disqualification for the Board of Directors under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970.

Background of the case:

The case at hand related to the nomination of a Director from the workman/employee category falling in clause (e) of Section 9(3) of the Act and as well as to his/her disqualification for being nominated as a Director in that category Section 9(3) of the Act provides for composition of Board of Directors and also provides as to who can be nominated as Directors in the Board of Directors. Clauses (a) to (i) of sub­section (3) of Section 9 of the Act sets out various categories from which   one Director from each of such categories is nominated in the Board of Directors. Clause(e) deals with a category of workman/employee Director whereas clause(f) deals with a category of officer/employee Director for their nomination in the Board of Directors.

On Distinction between Clauses (e) and (f) of Section 9(3) of the Act:

Both the categories of employees are different as per the perusal of the clauses (e) and (f) of Section 9(3) of the Act that:

  1. One is worker/employee category as defined under Section 9(3)(e) and the other is officer/employee category as defined under Section 9(3)(f) of the Act.
  2. It is for the legislature to decide as to what qualifications and disqualifications should be prescribed for various categories of the employees for their nomination on the post of Director.
  3. There lies a distinction between the worker and the officer. The former, i.e., worker is defined under Section 2(s) of the Industrial Disputes Act, 1947 and is governed by that Act whereas the latter, i.e., officer is not governed by the Industrial Disputes Act but is governed by separate service rules. Both these categories of employees, therefore, cannot be equated with each other and nor can be placed at par for providing equal qualification or/and disqualification for their nomination as a Director in the Board of Directors.
  4. Article 14 of the Constitution applies inter se two equals and not inter se unequals.
  5. The nominee worker/employee has only a right under the Act to be appointed as Director from the category of worker/employee in terms of Section 9 (3)(e) of the Act provided the concerned nominee whose name is recommended by the Union fulfils the qualifications laid down in Clause 3(2)(iii) of the Scheme but not beyond it.

On Uniform Qualification/Disqualification for Board of Directors under Section 9(3) clause (a) to (i):

The Board of Directors consists of persons coming from different fields. There cannot, therefore, be a uniform qualification or/and disqualification for such persons. Indeed, the qualifications and disqualifications are bound to vary from category to category and would depend on the post, experience and the stream from where a person is being nominated as a Director. Moreover, the qualification and disqualification has to be seen prior to his/her becoming a Director and not after his/her appointment as a Director.

[Federation of Bank of India Staff Unions v. Union of India, 2019 SCC OnLine SC 302, decided on 01.03.2019]

Case BriefsHigh Courts

Allahabad High Court: The Bench of Ashwani Kumar Mishra, J. declared that employment cannot be denied to petitioner when it was previously extended to him on his merits multiple times.

This petition has been filed challenging the order of the Joint Director of Education which states the qualification for appointment to the post of part-time instructor that would be guided by the respondent as well as the letter of the Secretary of the Board. The petitioner through his counsel Jitendra Pal Singh Chauhan has contended that owing to the above-mentioned criteria he was being denied the concerned benefits. He stated that he was appointed in 1998 and has continued since then with continued extensions plus as per the rules his appointment shall operate prospectively. The respondent has contended that as his service term was fixed thus his claim shall not be accepted.

The Court was of the view that the appointment of petitioner cannot be treated to be a fresh appointment for the purposes of determining his qualification when his employment has been extended multiple times which shall be considered of him having the requisite qualifications. Thus the Court ordered that the required consideration be made. [Vineet Kumar Kaushik v. State of U.P., 2018 SCC OnLine All 3353, decided on 05-12-2018]

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench comprising of Surya Kant, CJ and Ajay Mohan Goel, J., disposed of a writ petition whereby absorption in government service was allowed irrespective of the source of salary paid.

Intra-Court appeals which arose out of a common and same set of judgments were filed before the High Court. It was contended by the respondent that the appellant issued a notification whereby it decided to take over a college where he was working as a lecturer on a regular basis and hence the services of teaching and non teaching staff were taken over of which he was denied the benefit which calls for discrimination under Articles 14 and 16 of the Constitution of India. In the second case, the claim was rejected as the respondent was not recruited through an open competitive selection process but covered a considerable time at her employment.

The appellant contended that since the salary the respondent receives was by Self-Financing Scheme and not Grant-in-Aid released by the Department of Education, therefore she fell out of the scope of benefit.

The Court came to the conclusion that acquisition of a college was required in a larger public interest and thus the source of payment was not a consideration with both kind of employees forming a homogeneous class and no artificial discrimination could be made amongst them and hence the respondent stood absorbed in the service. For the second case, the respondent was allowed service on account of sympathetic consideration. However, such absorption will be on notional basis and she will be entitled to salary from the date of actual appointment. The appeals were disposed of accordingly.[State of H.P v. Kamlesh Kumar,2018 SCC OnLine HP 1581, decided on 30-10-2018]

Case BriefsHigh Courts

Kerala High Court: Aggrieved by the decision of a Single Judge in a petition filed by P. Chitra, a national level athlete, who had been denied participation in the International Association of Athletic Federation World Championship (IAAF World Championship) 2017, to be held in London, the Athletic Federation of India (appellant herein) filed an appeal and the matter was heard by a Division Bench comprising of Navaniti Prasad Singh, CJ. and Raja Vijayaraghavan V, J.

The original petition contended that the decision to not include the petitioner was arbitrary because she was the gold medalist in the 1500m race in the Asian Athletic Championships, Bhubhaneshwar, which ensured automatic qualification as the area champion. The learned Single Judge, on account of urgency of the matter, granted interim relief and directed the Federation to ensure the participation of the petitioner in the World Championship.

However, the Federation contended that the petitioner secured a second position in the Nationals held subsequently which was the reason why she was disqualified and she was therefore suppressing material facts. Moreover, the Federation also contended that the Court could not interfere with the decision of an expert body like itself. Rejecting these arguments of the Federation, the Court held that there had been a lot of controversy with regard to the selections of various athletes for the aforesaid World Meet.

The rule whereby an athlete had to perform well in the Nationals had not been entirely followed by the Federation itself in the selection of athletes. The Court acknowledged the fact that representing one’s country in a world meet is the dream of every athlete and it was necessary for the Court to interfere in the arbitrary manner the Federation had been functioning. However, it was also brought to light that no new entries could be made to the list of participants representing the country post July 24, 2017. Observing that the writ issued by the interim order is a futile one incapable of obedience, the Court allowed the appeal and vacated the interim order. [Athletics Federation of India v. Chitra PU, 2017 SCC OnLine Ker 11402, dated 03.08.2017]

Case BriefsSupreme Court

Supreme Court: Directing that Anurag Thakur, President of BCCI and Ajay Shirke, Secretary, BCCI shall forthwith cease and desist from being associated with the working of BCCI, the 3-Judge Bench of T.S. Thakur, CJ and A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ accepted the norms laid down by the Lodha Committee regarding the disqualification of the office bearers of BCCI which said that a person shall be disqualified from being an Office Bearer if he or she :

  • Is not a citizen of India;
  • Has attained the age of 70 years;
  • Is declared to be insolvent, or of unsound mind;
  • Is a Minister or government servant;
  • Holds any office or post in a sports or athletic association or federation apart from cricket;
  • Has been an Office Bearer of the BCCI for a cumulative period of 9 years;
  • Has been charged by a Court of Law for having committed any criminal offence.

The Bench said that tough sufficient opportunities have been granted to BCCI to comply with the judgment and order of this Court, it has failed to do so. The President and Secretary and office bearers of BCCI have obstructed the implementation of the final directions of this Court on the basis of a specious plea that its State Associations are not willing to abide by the directions. The Court had earlier, on 07.10.2016, asked Anurag Thakur, President of the BCCI to file a personal affidavit whether he had asked the CEO of the ICC to state that the appointment of Justice Lodha Committee was tantamount to Government interference in the working of the BCCI. It was noticed that the conduct of the President of BCCI in seeking a letter from the President of ICC in August 2016, after the final judgment and Order dated 18.07.2016, is nothing but an attempt on the part of the head of BCCI to evade complying, with the Order of this Court. The Court, hence, issued a show-cause notice to Anurag Thakur to explain why he should not be proceeded against under the provisions of Section 195 read with Section 340 of the Code of Criminal Procedure, 1973 and under the Contempt of Courts Act, 1971.

Stating that a Committee of administrators shall supervise the administration of BCCI through its Chief Executive Officer, the Court requested Mr Fali S Nariman, learned Senior Counsel and Mr Gopal Subramaniam, the learned Amicus Curiae to assist the Court in nominating the names of the administrators by suggesting names of persons with integrity and experience in managing a similar enterprise. Till then, the Court directed that the senior most Vice-President of BCCI shall perform the duties of the President, BCCI and the Joint Secretary shall perform the duties of Secretary. The matter was listed to be taken up on 19.01.2017 for nominating the names of the members of the committee of administrators. [BCCI v. Cricket Association of Bihar, 2017 SCC OnLine SC 4, order dated 02.01.2017]

Case BriefsSupreme Court

Supreme Court: The Bench of R. Banumathi and Shiva Kirti Singh, JJ gave split decision in the writ of certiorari filed by the petitioner seeking the quashment of the Notification dated 16th February, 2015 issued by the High Court of Manipur, whereby the petitioner was declared unsuccessful in viva-voce conducted by the High Court of Manipur for appointment to the post of District Judge (Entry Level) in Manipur Judicial Services Grade-I. The matter will be placed before a larger Bench for final adjudication.

The Impugned Notification notified that “no one shall be declared pass and selected for appointment unless he secures minimum 40% from the interview”. The petitioner, however, was not able to secure 40% in the interview and hence, argued that the marks obtained in the viva-voce should be merely added to the marks obtained in the written examination to finalize the merit list and it was not permissible to have fixed a minimum bench mark for the viva-voce as it amounts to change in the criteria of selection in the midst of the selection process.

Banumathi, J rejected the said contention and said that under the MJS Rules a scheme of converting the numerical marks of each question into an appropriate grade, according to the formula given in the table and re-converting into grades, is stipulated. In the table, the percentage of marks and Grade prescribe that marks below 40% is Grade ‘F’ which means ‘Fail’. Keeping in view the Rules and the table converting numerical marks into Grades and the final Select List that is prepared by adding cumulative grade value obtained in the written examination and the interview/viva-voce, fixing 40% for interview/viva-voce out of total marks of 50 is in consonance with MJS Rules and it will not amount to change in the criteria of selection in the midst of selection process. The object of conducting interview/viva-voce examination has been rightly stated in the Rules to assess suitability of the candidate by judging the mental alertness, knowledge of law, clear and original exposition, intellectual depth and the like. Hence, having regard to the seniority of the post which is District Judge  (Entry Level), the High Court cannot be faulted with for exercising its residuary right reserved in its favour by prescribing cut-off marks for the interview. Also, the petitioner participated in the selection process and only because in the final result the petitioner being unsuccessful, he cannot turn around and contend that the criteria for selection was changed.

Shiva Kirti Singh, J, on the other hand, said that the Rules and the instructions clearly demonstrate that there was no cut-off mark or pass mark for the viva voce examination in the past. Not providing any pass mark for the viva voce while so providing for the written examination clearly indicates that the Rules deliberately chose not to prescribe any cut-off for the viva voce. The statutory rules did prescribe a particular mode of selection which did not require any pass mark for the viva voce examination and it had to be given strict adherence accordingly, at least till the ongoing recruitment process got concluded. Since the procedure was already prescribed by the Rules, in the present case there was clear impediment in law in the way of the High Court in proceeding to lay down minimum pass mark for the viva voce test which was meant only for the petitioner as he was the lone candidate successful in the written examination. Although no case of bias has been pleaded, the impugned action would validly attract the criticism of malice in law. Also, the petitioner being the lone candidate having passed in the written examination, it matters little whether minimum marks for interview were introduced before or after calling him for interview. [Salam Samarjeet Singh v. High Court of Manipur at Imphal, 2016 SCC OnLine SC 1120, decided on 07.10.2016]

High Courts

Rajasthan High Court: In a matter brought before the Court by the petitioners who are aggrieved with the promulgation of an Ordinance by the Governor of the State of Rajasthan, which mandates educational qualification to represent the post of Sarpanchs, members of Panchayat Samiti and Zila Parishads, a bench comprising of Prakash Gupta J. and Sunil Ambwani (Acting CJ.) rejected all the stay applications against the impugned Ordinance and refrained to interfere in the matter of elections once the election process has started.

In the instant case, Indira Jai Singh, the learned Counsel for the petitioners prayed for an appropriate order or direction to stay the effect of an Ordinance promulgated by the Governor of the State of Rajasthan, which amends Section 19 of the Rajasthan Panchayati Raj Act, 1994 and mandates minimum qualification of class 12th ,  5th and 8th passed for member of Zila Parishad or Panchayat Samiti, Sarpanch of a Panchayat in a Scheduled Area and Sarpanch of a Panchayat other than in a Scheduled Area respectively. The Counsel contended that the State of Rajasthan has acted in colourable exercise of powers with an oblique purpose to disqualify and to exclude a large section of population living in rural areas from the election process. The Counsel further pleaded to grant interim protection to save the rights of thousands of persons who did not had an opportunity of formal education in the State of Rajasthan.

N.M. Lodha, learned Advocate General for the respondent, contended that the powers of the Governor to promulgate an Ordinance during the recess of Legislature under Article 213 of the Constitution cannot be subjected to judicial review. The Court noted that “prescription of educational qualification for contesting elections in any democratic institution, unless there is strong nexus with the object, to be achieved, is an anti-thesis to the democratic governance of the institution in a republic. It is a negation of the very object of purpose of enacting the Constitution of India, described in its preamble”. The Court relied on the contention of R.B. Mathur, the learned counsel for the Rajasthan State Election Commission and refrained itself from interfering in the matter of election as “any interim order at this stage causing interference in the process of elections for constituting Panchayats, will lead to chaos and confusion, and will create a crisis for the Rajasthan State Election Commission in holding elections”. The Court rejected all the stay applications against the Ordinance and directed the parties to produce empirical data before the Court to prove their grounds for/against the effect of the Ordinance. Dulari Devi v. State of Rajasthan, 2015 SCC OnLine Raj 121, decided on 15-01-2015.