Appointment

Case BriefsHigh Courts

Himachal Pradesh High Court: A Division Bench of Sabina and Satyen Vaidya JJ. dismissed the petition on grounds of non-interference.

 The facts of the case are such that the father of the petitioner was working as a T-Mate with the respondent department and had died while in service, on 03-03-2007. Petitioner by approaching the respondents had sought appointment on compassionate basis. However, the case of the petitioner has been wrongly rejected on the ground that since the mother of the petitioner was already serving in Himachal Pradesh Public Works Department; therefore, he was not entitled for appointment on compassionate basis.

Counsel for the respondents submitted that as per Clause-5 (c) of the Policy dated 18-1-1990; case of the petitioner has been rightly rejected as the mother of the petitioner was already in a Government job.

The Court relied on judgment State of Himachal Pradesh v. Shashi Kumar, (2019) 3 SCC 653 wherein it was observed that

“… Compassionate appointment is an exception to the general rule that appointment to any public post in the service of the State has to be made on the basis of principles which accord with Articles 14 and 16 of the Constitution. Dependants of a deceased employee of the State are made eligible by virtue of the Policy on compassionate appointment.

“..it is a well-settled principle of law that there is no right to compassionate appointment. But, where there is a policy, a dependant member of the family of a deceased employee is entitled to apply for compassionate appointment and to seek consideration of the application in accordance with the terms and conditions which are prescribed by the State.”

Clause 5 (c) of the said policy reads as under:-

“In all cases where one or more members of the family are already in Govt. Service or in employment of Autonomous Bodies/Boards/Corporation etc., of the State/Central Govt. employment assistance should not under any circumstances be provided to the second or third member of the family. In cases, however, where the widow of the deceased Govt. Servant represents or claims that her employed sons/ daughters are not supporting her, the request of employment assistance should be considered only in respect of the widow. Even for allowing compassionate appointment to the widow in such cases the opinion of the department of Personnel and Finance Department should specifically be sought and the matter finally decided by the Council of Ministers.”

 Thus, the Court observed that the petitioner was not entitled for appointment on compassionate basis in view of Clause-5(c) of the relevant policy as his mother was already in a government job. The Court further observed that the respondents have rightly rejected the case of the petitioner for his appointment on compassionate basis.

The Court held “no ground for interference, while exercising extraordinary writ jurisdiction under Article 226 of the Constitution of India, is made out.”

[Moti Ram v. Himachal Pradesh Electricity Board, Civil Writ Petition (Original Application) No.2619, decided on 03-01-2022]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances:

For petitioner: Naveen K Bharadwaj

For respondent: Mr. Anil Kumar God

Case BriefsSupreme Court

Supreme Court: While addressing the issue as to whether a candidate is entitled to claim appointment on a subsequent post in his preference list after having being considered for his first preference and being declared not suitable for the said post due to non-fulfilment of physical requirements, the Division Bench of Dr Dhananjaya Y Chandrachud and A.S. Bopanna*, JJ., replied in negative. The Bench stated,

“Though, the appointment is a subsequent act which would take place on verifying the details and the candidate being found to be eligible, the right of a candidate for selection will stand exhausted once he is in the main list as per the Rule.”

The appellant, Madhya Pradesh Public Service Commission (MPSC) assailed the impugned order of the High Court directing MPSC to consider the case of the respondent for appointment on the post of the Chief Municipal Officer (CMO) Grade Kh, Assistant Director or any other post mentioned by the respondent in his preference letter. The intra Court appeal filed against the said order had been dismissed.

The respondent, who had applied under the Scheduled Caste category, was a successful candidate for the State Service Examination 2016 having secured 892 marks out of 1575 marks. The preference order submitted by the respondent 1 was as follows; Deputy District Collector, Deputy Superintendent of Police (DSP) and CMO. However, the marks obtained by the respondent were not sufficient for the post as per his first preference; therefore his name was included in the main list for the post of Deputy Superintendent of Police by the appellant-MPSC.

The second preference shown was for the post of DSP, which could have been opted by a candidate if the candidate satisfied the minimum required physical measurement. In compliance with the remaining formalities for appointment the respondent appeared before the Medical Board where it was found that his height was only 162 cm as against the prescribed minimum height of 168 cm. Therefore, the authority held that the respondent was not eligible for the post of DSP.

The contention of the respondent was that a schedule caste candidate who had secured 892 marks was appointed to the post of CMO, therefore, the respondent having shown his subsequent preference for CMO he was entitled to be appointed for the post of CMO.

MP State Civil Services Rules, 2015, more particularly Rule 4(3)(c)(1) and (2) of the Rules provide as hereunder:

“If a candidate is selected in the main list on the basis of the higher priority of post given by him in the preference sheet, he/she will not be considered for the remaining post(s) of preference sheet.”

The Bench observed, though several posts were advertised, the advertisement had indicated the requirement of the Rule that a candidate who had preferred the higher of the posts which had been advertised, would be selected against such post depending on the merit in the examination. Further, Clause (2) of Sub Rule (3) clarifies that if a candidate is selected in the main list on the basis of the higher priority of the post given by him in the preference sheet, he will not be considered for the remaining post indicated in the preference sheet.

Noticeably, apart from indicating that his second preference is to the post of DSP, the respondent had further signed in acknowledgment of the declaration made in the application to the effect that “the choice for the posts which have been given by him, he has fulfilled all the prescribed eligibility i.e. age limit, educational qualifications, experience, physical measurement etc. for those posts. It is also indicated that if he was found ineligible at any stage of selection, his candidature can be cancelled.”

Observing that the declaration was explicit that the choice of preference to the post had been made by the respondent since according to him he had fulfilled the prescribed eligibility criteria, including physical measurement, the Bench expressed,

“…the positive declaration made by the respondent is that he satisfies the minimum eligibility of 168 cm height required for the post he has preferred which is the higher post than the next preference. In such event, the authority concerned on perusal of the application would presuppose that such physical eligibility criteria is possessed by the candidate concerned and he therefore has made his choice for the post.”

The Bench emphasised that Rule 4(3)(c)(1) and (2) employs the phrase “selected in the main list” and “not appointed to the post”. Therefore, “if the respondent who had made declaration about the correctness of his eligibility and secured the selection to be placed in the main list for the said post, he had to blame himself if found ineligible since his height was admittedly 162 cm which was in fact within his knowledge.”

In the backdrop of above, the Bench concluded that the respondent ought not to have exercised the preference but having acted so at that stage, if his request for appointment to the next preferred post is accepted, it will result in displacing a candidate who having made a truthful declaration had indicated the appropriate preference, who got selected and placed in the main list.

Therefore, holding that any interference in the selection process, apart from the fact that it could interfere with the administrative process would also cause hardship to the candidates who had already been appointed and were not before the Court, the Bench stated that the respondent 1 could not be permitted to turn around to seek alteration of the position to the detriment of others. Accordingly, the appeal was allowed and the impugned judgment was set aside.

[Madhya Pradesh Public Service Commission v. Manish Bakawale, C.A. No. 7721 of 2021, decided on 17-12-2021]

*Judgment by: Justice A.S. Bopanna

Kamini Sharma, Editorial Assistant has put this report together 

 

Case BriefsSupreme Court

Supreme Court: The 3-Judges Bench Comprising of L. Nageswara Rao*, Sanjiv Khanna and B.R. Gavai, JJ., upheld the controversial appointment of Mr. DInkar Gupta as DSP, State of Punjab.

Aggrieved by the order of the Governor of Punjab by which one Mr. Dinkar Gupta was appointed as Director General of Police (DGP), the appellants had filed original applications before the Central Administrative Tribunal. The Tribunal set aside the order of appointment on the ground that preparation of the panel for selection of DGP was in contravention of the judgement in the case of Prakash Singh v. Union of India and directed the Union Public Service Commission (UPSC) and the State of Punjab to conduct selection for the post of DGP afresh. However, in appeal, the judgement of the Tribunal was set aside by the High Court of Punjab and Haryana.

The grievance of the appellant was that the Draft Guidelines for the appointment were not in conformity with the decision of the Supreme Court. The appellant also alleged one of the members of the Empanelment Committee constituted by the UPSC to finalise a panel of shortlisted candidates for selection for holding bias against him.

Factual Analysis

So far as the selection and minimum tenure of DGP was concerned, the had Court directed that the UPSC shall empanel three senior-most officers of the Department for promotion to the rank of DGP on the basis of their length of service, very good record and range of experience for heading the police force and the State Government should select the DGP from amongst the officers empanelled by the UPSC.

By way of implementation of the directions issued by this Court in Prakash Singh’s case, UPSC framed Draft Guidelines for empanelling officers for appointment as DGP. Selection, according to the Guidelines, shall be meritbased and inclusion in the panel shall be adjudged on the basis of ‘very good’ record and range of experience for heading the police force. The Committee was obligated to make assessment of the annual confidential reports of the officers with reference to the last ten years preceding the date of meeting of the Committee.

Validity of Draft Guideline          

According to UPSC, the range of experience was a constituent part of the component of merit. In respect of selection to the post of DGP, five core policing areas had been identified to assess the range of experience of the officers concerned for the last 10 years, which were:- A. Intelligence B. Law and order C. Administration D. Investigation E. Security.

The contention of the Appellant was that the criteria fixed in Prakash Singh’s case were not followed in letter and spirit by the Empanelment Committee of UPSC while conducting selection to the post of DGP. Admittedly, appellant was senior to respondent 4 and could not have been superseded by the Empanelment Committee of the UPSC.

The Draft Guidelines which have to be scrupulously followed by empanelment committees stipulate that a selection should be on the same criteria. In the instant case, Empanelment Committee decided to assess the range of experience of officers to head the police force in the State of Punjab after considering the peculiarities of the State. Identification of five core policing areas out of a domain of twenty policing areas could not be said to be an arbitrary exercise of power as discretion was given to the empanelment committees to select the core policing areas by taking into account the prevailing situation in the States.

Noticeably, by the order dated 13-03-2019, the judgment of Prakash Singh’s case was clarified by the Court and the UPSC was directed to prepare the panel purely on the basis of merit. The recommendation of the names of 12 officers for consideration was on the basis of completion of thirty years’ service in the cadre of ADGP. Length of service as mentioned in Prakash Singh’s case was taken into account for determination of zone of consideration. The other two factors namely, good record of service and range of experience on the basis of length of service was assessed by the Empanelment Committee. Inter se merit of the candidates was evaluated according to the objective criteria followed by the Committee and a panel of three officers had been prepared in the order of seniority. Observing that the Appellant was found to be inadequate for inclusion in the panel in the range of experience for core policing areas, the Bench stated that the preparation of panel by the Empanelment Committee was in compliance of the Draft Guidelines, which were in conformity with the directions issued by the Court in Prakash Singh’s case.

Allegation of Bias

The appellant argued that the empanelment and appointment of Respondent 4 as DGP was vitiated by bias as respondent 5 who was a member of the Empanelment Committee was prejudiced against the Appellant due to the report filed by the Appellant before the Punjab and Haryana High Court by which Respondent 5 was found to be involved in criminal activities. The appellant submitted that, on earlier occasions Respondent 5 had recused himself in matters relating to the Appellant and, therefore, he ought not to have participated in the selection process.

Noticeably, the incumbent DGP of the State is a member of the empanelment committee according to the Draft Guidelines issued by the UPSC and the Guidelines were issued in compliance with the directions given by the under Article 142 of the Constitution, which was well-known and in public domain. Therefore, the Bench opined that the position that Respondent 5, being the DGP, would be a member of the Empanelment Committee was within the knowledge of the Appellant and ignorance of that factum must be rejected as a mere pretence. Moreover, the fact that respondent 5 was member of the Committee was even published in the Hindustan Times, considering that the appellants were not laymen, but senior police officers aspiring for the appointment to the top police position in the State, the Bench held that they were estopped from challenging the recommendations made by the Committee, given the fact that they had taken a calculated chance, and not protested till the selection panel was made public. Applying the ratio of Madan Lal v. State of Jammu and Kashmir, (1995) 3 SCC 486, the Bench stated,

“When a person takes a chance and participates, thereafter he cannot, because the result is unpalatable, turn around to contend that the process was unfair or the selection committee was not properly constituted.”

Conclusion

In the light of above, the Bench held that the High Court did not commit any error by setting aside the judgment of the Tribunal and upholding the selection and appointment of Respondent 4 as DGP of State of Punjab. Accordingly, the appeals were dismissed.

[Mustafa v. Union of India, 2021 SCC OnLine SC 1063, decided on 16-11-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance by:

For the Appellants: Krishnan Venugopal, Senior Counsel and P.S. Patwalia, Senior Counsel

For UPSC: Aman Lekhi, Additional Solicitor General

For State of Punjab: Mukul Rohatgi, Senior Counsel for the State of Punjab

For Respondent 4: Maninder Singh, Senior Counsel

For Respondent 5: Shyam Divan, Senior Counsel

*Judgment by: Justice L. Nageswara Rao

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Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: The Division Bench of Ali Mohammad Magrey, Sanjay Dhar, JJ., held that in case of appointments to Class-IV posts, higher qualification than the prescribed 10+2 may not be suitable for many reasons;

Firstly, a highly qualified person may not be in a position to discharge the menial work which is required to be done by a Class-IV employee;

Secondly, if such highly qualified candidates are allowed to compete with candidates with lower qualification, as prescribed, it is but obvious that they will score above them and would get selected to the detriment of the candidates possessing the requisite eligibility; and

Thirdly, such candidates of higher qualification, if selected, would always be looking for a better job and, as soon as they are selected in some other better discipline, they would leave the Class-IV post rendering the entire selection as useless, besides forcing the employer to get those posts re-advertised and re-filled.

Background

On one hand, the case of the appellant was that consequent to his selection as an Attendant (Class- IV) he was not appointed as such under “Physically Handicapped Category”. On the other hand, one Ahtisham-ul-Haq-petitioner had filed a Petition questioning the  selection of the appellant on the grounds that:

(i) the Advertisement Notice specifically prescribed maximum and minimum educational qualification and that no additional weightage was to be given for higher qualification;

(ii) that in terms of the Act of 1988, 3% reservation is provided for Physically Handicapped persons and this reservation operates horizontally; and

(iii) that the appellant has sworn a false affidavit saying that his educational qualification is not more than 10+2 when he actually held the qualification of B.A, M.A. (Political Science) and B.Ed.

The Single Judge, after clubbing the two Petitions, passed a common judgment holding that the candidates with higher qualification are not eligible to apply when the advertisement notice prescribes minimum and maximum qualification; the Court declared that the appellant was overqualified and, therefore, could not apply for the post in question. Hence, the single Judge quashed the selection list of Class-IV posts insofar as it related to the selection of the appellant figuring in the category of Physically Handicapped/Open Category, besides directing the official Respondents to accord consideration to the selection and the appointment of the Petitioner as against the Class-IV post (Attendant) on the basis of the merit secured by him in the selection process.

Opinion and Analysis

Opining that the appointment to the aforesaid Class-IV posts had to be made on the basis of the suitability vis-à-vis the qualification held by the person and the nature of the job, for which purpose the decision of the employer is final, provided it is not arbitrary in nature, the Bench clarified,

“To put it in other words, the suitability and the qualifications for any post have to be laid down by the employer and the same are not liable to be interfered with judicially, until and unless the policy decision in that regard is found to be irrational or arbitrary.”

The Bench stated that laying down of the criteria of the minimum and the maximum qualification for the Class-IV post as matric and 10+2, respectively, was neither irrational, unreasonable nor arbitrary. Accordingly, the decision of the Single Judge was held to be in accordance with legal position governing the subject, i.e any higher qualification than the one prescribed for a particular post may not be a suitable qualification and that the employer, in its wisdom, is justified in excluding candidates with higher qualification from the ambit of selection.

Decision

Consequently, the Bench held that higher qualification may not be suitable qualification for every post and, if candidates with higher qualifications are excluded, the same could not be faulted with and said to be illegal or perverse. Hence, the appeal was dismissed. [Firdous Ahmad Ganai v. State of J&K, 2021 SCC OnLine J&K 901, decided on 15-11-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Appellant: Z. A. Shah, Senior Advocate with A. Hanan Kalwal, Advocate

For the Respondents: S. A. Makroo, Senior Advocate with Mohammad Amin Bhat, Advocate; and Bikramdeep Singh, Government Advocate

Appointments & TransfersNews

President appoints 3 Additional Judges to Calcutta High Court for a period of 2 years with effect from the date they assume charge of their office:

  1. Krishna Rao
  2. Bibhas Ranjan De
  3. Ajoy Kumar Mukherjee

Ministry of Law and Justice

[Notification dt. 16-11-2021]

Appointments & TransfersNews

President transfers Justice Sanjib Banerjee, Chief Justice of the Madras High Court, as the Chief Justice of the Meghalaya High Court and directs him to assume charge of the office of the Chief Justice of the Meghalaya High Court.

Ministry of Law and Justice 

 

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., expressed dismay over the manner adopted by the Western Command, Military Engineering Service in making appointments from the select panel of 29-06-1983 after a lapse of 4-5 years in the year 1987-1988.  

Facts of the Case

The undisputed facts of the case were that a letter was sent from the office of the Engineer-in-Chief of the Engineer-in-Chief of the Military Engineering Service to the Chief Engineers of all the five Commands (Eastern, Western, Northern, Southern and the Central Command) for initiating the recruitment of Group ‘C’ personnel in the Grade of Superintendent (B/R) Grade II and Superintendent (E/M) Grade II. Pursuant to which process of selection was initiated by the office of Chief Engineer in all the five Commands followed with the separate select list in the order of merit in each of the respective Commands came to be published in the year 1983.

In Western Command, a select panel of 261 candidates was published on 29-06-1983 and appointments were made as per the select list based on the order of merit in their respective Commands. The trouble arose when candidates who were selected and placed in the select panel dated 29-06-1983 of the Western Command were curiously appointed from April 1987 to April 1988, i.e. after 5 years down the line in the Western Command.

The grievance of the candidates was that as they were the candidates of the select panel of June 1983, and seniority of the candidates selected by direct recruitment was to be determined in the order of merit regardless to their date of joining, they were entitled to claim seniority with their counterparts who were appointed out of the select panel dated 29-06-1983 of Western Command in the year 1983.

Hence, the issue before the Bench was to determine whether such applicants, who although were approved in the panel prepared by the Western Command in 1983, but appointed after a gap of 5 years in 1987/1988, were entitled for determination of their seniority as per their placement in the order of merit in the select panel of the year 1983 or will be entitled to claim seniority from the date of their appointment?

Findings of the Court

“…the manner in which the appointments were made from the select panel of 1983 after it has outlived its life in the year 1987-1988 and ordinarily it was not open to be operated upon and such appointments are nothing but a clear abuse of the discretion vested with the competent authority.”

Noticing that the different Commands carried out separate selections and published its select panel in the year 1983, and the normal principle of adjudging seniority in their respective intra Command on the basis of placement in the order of merit could not apply as the  separate selections were held by the respective Command, the Bench stated that the principle of initial date of appointment/continuous officiation might be the valid principle to be considered for adjudging inter se seniority of the officers in the absence of any rule or guidelines in determining seniority to the contrary.

Keeping in view the principles laid down by the Constitutional Bench in Direct Recruit Class II Engineering Officers’ Association v. State of Maharashtra, (1990) 2 SCC 715, the Bench stated,

“…when all the five Commands have initiated the process of selection independently at the same time pursuant to the directives of the Engineer-in-Chief, Army Headquarters dated 9th December, 1982 while adjudging their combined inter se seniority list, the principle of initial date of appointment/continuous officiation may be the valid principle to be considered for determination of inter se seniority in the absence of any rule or guidelines to the contrary.”

Conclusion

Holding that, though the appointment of individual made at a later stage after five years from the select panel notified on 29-06-1983 could not be countenanced by the Court, but considering the peculiar circumstances, the Bench stated, “we are not inclined to open the dead issue at this stage”, but as a matter of caution, the Bench opined that the authorities must be held accountable for their arbitrary action and save the institution from uncalled for litigation.

Accordingly, while upholding the judgment of the Tribunal, i.e. recasting the inter se consolidated seniority list of five Commands based on their initial date of appointment/from the date of entry into service, which was affirmed by the Delhi High Court, the Bench ordered if any person is aggrieved with his placement in the re-casted seniority list prepared in compliance with the order of the Tribunal, he will always be at liberty to assail his placement in seniority in the independent proceedings in accordance with law.

However, the judgment of the Punjab and Haryana High Court wherein it had permitted the seniority of two candidates to be counted from the year 1983 was set aside without disturbing the status of the respondents as both the incumbents were promoted in terms of their revised seniority to the higher promotional post and one of them had retired and another was at the verge of retirement in March 2022.

[Sudhir Kumar Atrey v. Union of India, 2021 SCC OnLine SC 971, decided on 26-10-2021]

Kamini Sharma, Editorial Assistant has put this report together 

*Judgment by: Justice Ajay Rastogi

Know Thy Judge | Justice Ajay Rastogi

Appointments & TransfersNews

Supreme Court Collegium recommends the transfer of Justice Munishwar Nath Bhandari, Allahabad High Court to Madras High Court.

Collegium Statement

Supreme Court of India

Appointments & TransfersNews

Appointment of a Judge

President appoints Shri Aditya Kumar Mohapatra as a Judge of the Orissa High Court.

Ministry of Law and Justice

[Notification dt. 3-11-2021]

Appointments & TransfersNews

Appointment of Acting Chief Justice of Meghalaya High Court

President appoints Justice Hamarsan Singh Thangkhiew as Judge of Meghalaya High Court to perform the duties of the Chief Justice of the Meghalaya High Court.

Ministry of Law and Justice

[Notification dt. 3-11-2021]

Appointments & TransfersNews

5 Additional Judges appointed to Punjab and Haryana High Court

President appoints the following as Additional Judges of Punjab and Haryana High Court for a period of 2 years from the date they assume charge:

  • Vikas Suri
  • Sandeep Moudgil
  • Vinod Sharma (Bhardwaj)
  • Pankaj Jain
  • Jasjit Singh Bedi

Ministry of Law and Justice

[Notification dt. 28-10-2021]

Appointments & TransfersNews

Appointment of Judges | Rajasthan High Court

Two Judges appointed to Rajasthan High Court:

  • Kumari Rekha Borana
  • Sameer Jain

Ministry of Law and Justice

[Notification dt. 28-10-2021]

Appointments & TransfersNews

Appointment of Judge

President appoints J. Sathya Narayana Prasad to be an Additional Judge of the Madras High Court for a period of 2 years.

Ministry of Law and Justice

[Notification dt. 27-10-2021]

Appointments & TransfersNews

Appointment of Judges | Punjab and Haryana High Court

President appoints the following Additional Judges as Judges of the P&H High Court:

  1. Suvir Sehgal
  2. Alka Sarin
  3. Jasgurpreet Singh Puri
  4. Ashok Kumar Verma
  5. Sant Parkash
  6. Meenakshi I. Mehta
  7. Karamjit Singh
  8. Vivek Puri
  9. Archana Puri
  10. Rajesh Bhardwaj

Ministry of Law and Justice

[Notification dt. 24-10-2021]

Appointments & TransfersNews

President of India appoints the following Advocates as Judges of the Gujarat High Courts w.e.f. the date they assume charge of their respective offices:-

Sl. No. Name (S/Shri)
1. Smt. Mauna Manish Bhatt
2. Samir Jyotindraprasad Dave
3. Hemant MaheshchandraPrachchhak
4. Sandeep Natvarlal Bhatt
5. Aniruddha Pradyumna Mayee
6. NiralRashmikant Mehta
7. Ms. Nisha Mahendrabhai Thakore

Ministry of Law and Justice

[Dt. 16-10-2021]

Appointments & TransfersNews

Appointment of Additional Judges | Kerala High Court

Four Additional Judges appointed to Kerala High Court:

  • Chandrasekharan Kartna Jayachandran
  • Sophy Thomas
  • Puthen Veedu Gopala Pillai Ajithkumar
  • Chandrasekharan Sudha

Ministry of Law and Justice

[Notification dt. 13-10-2021]

Appointments & TransfersNews

Appointment of Judges | Orissa High Court

Following 3 Judges appointed to Orissa High Court:

  • Mrugankar Sekhar Sahoo
  • Radha Krishna Pattanaik
  • Sashikanta Mishra

Ministry of Law and Justice

[notification dt. 13-10-2021]

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and AS Bopanna, JJ has held that the dependent of the deceased employee cannot seek the appointment on compassionate ground on the higher post than what was held by the deceased employee as a matter of right, on the ground that he/she is eligible fulfilling the eligibility criteria of such higher post.

Interpreting the term ‘suitable post’ under Rule 5 of the Dying-­In-Harness Rules, 1974, the Court held that ‘Suitable post’ has to be considered, considering status/post held by the deceased employee and the educational qualification/eligibility criteria is required to be considered, considering the post held by the deceased employee and the suitability of the post is required to be considered vis a vis the post held by the deceased employee, otherwise there shall be no difference/distinction between the appointment on compassionate ground and the regular appointment.

Explaining by way of an example, the Court said that

“In a given case it may happen that the dependent of the deceased employee who has applied for appointment on compassionate ground is having the educational qualification of Class¬II or Class-I post and the deceased employee was working on the post of Class/Grad IV and/or lower than the post   applied, in that case the dependent/applicant cannot seek the appointment on compassionate ground on the higher post than what was held by the deceased employee as a matter of right, on the ground that he/she is eligible fulfilling the eligibility criteria of such higher post.”

The Court said that allowing so shall be contrary to the object and purpose of grant of appointment on compassionate ground i.e to enable the family to tide over the sudden crisis on the death of the bread   earner.

“… appointment on compassionate ground is provided out of pure humanitarian consideration taking into consideration the fact that some source of livelihood is provided and family would be able to make both ends meet.”

[State of Uttar Pradesh v. Premlata, 2021 SCC OnLine SC 872, decided on 05.10.2021]

Counsels:

For Appellant: Advocate Ruchira Goel

For respondent: Advocate Shashank Singh

*Judgment by: Justice MR Shah

Case BriefsHigh Courts

Delhi High Court:  While dismissing the challenge to Rakesh Asthana’s appointment as Commissioner of Delhi Police, Division Bench of D.N. Patel, CJ and Jyoti Singh, J., expressed that,

It ought to be kept in mind that Delhi, being the Capital of India, has a unique, special and specific requirement. It has witnessed several untoward incidences and extremely challenging law and order situations/riots/crimes, which have an international implication, which in the wisdom of the Central Government necessitated appointment of an experienced officer possessing diverse and multifarious experience of heading a large Para-Military Security Force apart from other factors.

In the present matter, petitioner was aggrieved by the impugned order whereby Inter-Cadre deputation was granted to respondent 2 – Rakesh Asthana from Gujarat Cadre to AGMUT Cadre as also an extension of his service, initially for a period of one year beyond the date of his superannuation or until further orders, whichever is earlier and his appointment as Commissioner of Police, Delhi.

Challenge to the Order with regard to approval being granted by Appointments Committee of Cabinet for Inter-Cadre Deputation of Respondent 2 as well as the extension of his service beyond the age of superannuation was also laid.

Factual Background

Respondent 2 an IPS Officer of Gujarat Cadre with an experience of approximately 37 years was appointed as Commissioner of Police, Delhi.

The petition was filed on the following grounds:

i) Violation of Guidelines issued by the Supreme Court in Prakash Singh’s Case (I) and (II)

ii) Violation of mandate of provisions of FR-56(d).

iii) Central Government has no power under Rule 3 of Rules, 1960 to relax Rule 16(1) of Rules, 1958.

iv) Violation of provisions of DoPT O.M. dated 08.11.2004, pertaining to Inter-Cadre deputation of officers belonging to the All-India Services.

Analysis, Law and Decision

High Court while reading the directions issued by the Supreme Court in Prakash Singh’s Case (I) and (II) made it clear that the directions given by the Supreme Court and the principles culled out therein were in effect applicable for appointment to the post of ‘DGP of a State’ to be selected by State Government, from amongst the three senior most officers of the Department.

The said Judgment has no application for appointment of Commissioners/Police Heads of Union Territories falling under the AGMUT Cadre.

Further, the Court stated that the Supreme Court’s decision in Prakash Singh’s Case (I) indicates that direction 2 under the heading “Selection and Minimum Tenure of DGP” are clearly meant to apply for selection to the post of DGP of a State and accordingly the procedure for selection can only be relevant and applied in that context and can have no relevance or application to the appointment of Commissioner of Police, Delhi.

Court agreed with respondent 1 that State Cadres have to be treated differently from the AGMUT Cadre due to the unavailability of sufficient number of officers in the pool in respect of various segments of AGMUT Cadre.

From the perspective of service jurisprudence and good administration, it is no doubt a healthy practice to ensure that senior officers are not superseded on account of mere technicalities.

Bench expressed that Delhi, being the Capital of India, has its own characteristics, peculiar factors, complexities and sensitivities, which are far lesser in any other Commissionerate.

Any untoward incident in the National Capital or a law and order situation will have far reaching consequences, impact, repercussions and implications not only in India but across the International borders. Thus, it is imperative that “free movement of joints” is given to the Central Government for appointment of Commissioner of Police, Delhi, keeping in mind the complexities obtaining in the Capital.

Respondent 2’s appointment as Commissioner of Police, Delhi was made by following the statutory procedure prescribed under the Delhi Police Act, 1978 read with Transaction of Business of GNCTD Rules, 1993.

Settled Law

Where a contemporaneous and practical interpretation or practice has stood unchallenged for a considerable length of time, it would be a useful guide for proper construction/interpretation of the provisions of s Statute or Executive Instructions.

Therefore, applying the principle of contemporanea expositio, if a procedure has been followed by the Central Government since 2006, with the clear understanding as aforesaid and appointments of as many as 8 Commissioners of Police, Delhi have been made following the statutory regime under the Delhi Police Act, 1978 read with Transaction of Business of GNCTD Rules, 1993, which has withstood the test of time, without any demur/objection/challenge in any Court or Forum of law, the same gains weightage.

In view of the above stated, Court sees no reason to direct respondent 1 to deviate from the long practice and procedure followed for appointment of Commissioner of Police, Delhi given the reasons and complexities of the National Capital and the AGMUT Cadre.

Various Supreme Court decisions have explained the principle of contemporanea exposition.

As per the decision of Supreme Court in Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501, matters pertaining to Public Order, Police and Land lie outside the ambit of the legislative powers of the Assembly and hence are outside the Executive functions of the GNCTD.

In the present matter, a statutory provision being Section 6 of the Delhi Police Act, 1978 empowers the Lieutenant Governor to make a proposal for appointment of Commissioner of Police, Delhi and thus no illegality was found in the appointment.

Violation of Provisions of the DoPT O.M. dated 8-11-2004 regarding the Inter-Cadre Deputation of Respondent 2

Contention was that respondent 2 was not eligible for Inter-Cadre deputation as he had reached the Super Time Scale in 2002 and Inter-Cadre deputation was permissible only before reaching the Super Time Scale in the Home Cadre. 

Court expressed those provisions of Clause (a) of O.M. dated 28-6-2018 grant power of relaxation of any of the provisions of the Guidelines stipulated in O.M. dated 8-11-2004.

Further, Court added that there is a power vested in the Central Government to grant relaxation, which would include relaxation of the provisions of Clause (b) of the DoPT O.M. dated 28-6-2018 and Clause 2(i) of DoPT O.M. dated 8-11-2004.

The relaxation power has been exercised in the present case in granting Inter-Cadre deputation to Respondent 2 and in the absence of lack of power and jurisdiction, this Court cannot find any illegality in the impugned action.

Counsels for Petitioner/Intervener could not make out a case calling for interference in the decision of the Government or even remotely demonstrated that there was any blot in the service career of respondent 2 making him unsuitable for the post in question.

Office Memorandums are Guidelines, to effectively regulate the services of the employees and bring uniformity therein. In changing conditions or peculiar circumstances, Government may require to deviate from a certain condition and it is for this reason that provisions for relaxation of the Guidelines are incorporated in the Rules and Executive Instructions.

 Respondent 1 has violated FR-56(d) and Rule 16(1) of Rules, 1958

 As per Rule 3 of Rules, 1960, Central Government has the power to relax any Rule framed under the All India Services Act, 1951 and any Regulation made under any such Rule, if it is satisfied that the operation of any Rule/Regulation, causes undue hardship in any particular case.

Hence, in Court’s opinion Rule 3 of Rules, 1960 certainly empowers the Central Government to relax the provisions of Rules 16(1) of Rules, 1958 to give extension of service to respondent 2.

Bench remarked that,

 “It is not open for this Court, sitting in a judicial review, to substitute its own decision and wisdom for that of the Central Government as it is really the domain and prerogative of the Government to take a decision for grant of relaxation or otherwise, on the basis of its subjective satisfaction premised on objective considerations.”

 While FR 56(d) deals with the extension of service of a Government Servant, in general, Rule 16(1) of Rules, 1958, in particular, deals with a Member of the All India Services.

Therefore, in the present matter, respondent 2 is an IPS officer and Member of the All India Services, the service conditions are more aptly governed by Rules, 1958 and the provisions of Rule 3 of Rules, 1960 would apply for relaxation of the provisions of Rule 16(1) of Rules, 1958. Hence, it would be irrelevant to deal with the issue of alleged violation of FR-56(d) once the Central Government has relaxed Rule 16(1) by invoking Rule 3 of Rules, 1960.

Concluding the matter, High Court added a note of caution to the petitioner while noting that Solicitor General and Prashant Bhushan had strenuously argued that the pleadings in the present petition are a “cut, copy, paste” of the petition filed by the Intervener before the Supreme Court and that such a practice must be discouraged and strictures be passed against the Petitioner, Court observed that such a practice is certainly unhealthy and deserves to be deprecated and the petitioner shall be well advised to refrain from indulging in such exercise, in future.

In view of the above petition was dismissed. [Sadre Alam v. Union of India, 2021 SCC OnLine Del 4691, decided on 12-10-2021]

Advocates before the Court:

For Petitioner:

B.S. Bagga, Advocate

For Respondents:

Mr. Tushar Mehta, Solicitor General of India with Chetan Sharma, Additional Solicitor General, Mr. Amit Mahajan, Central Government Standing Counsel, Mr. Amit Gupta, Mr. Vinay Yadav, Mr. Akshay Gadeock and Mr. Sahaj Garg, Advocates for Respondent No.1.

Mr. Mukul Rohatgi, Senior Advocate, Mr. Maninder Singh, Senior Advocate with Ms. Diksha Rai, Ms. Devanshi Singh, Mr. Ankit Agarwal, Mr. Prabhas Bajaj and Ms. Palak Mahajan, Advocates for Respondent No.2.

Mr. Prashant Bhushan, Ms. Neha Rathi and Mr. Jatin Bhardwaj, Advocates for Intervener.

Appointments & TransfersNews

President appoints the following as Additional Judges of the Madras High Court:

  • Sundaram Srimathy
  • D. Bharatha Chakravarthy
  • R. Vijayakumar
  • Mohammed Shaffiq

Above to be the Additional Judges of the Madras High Court, for a period of 2 years from the date they assume charge of their offices.

Ministry of Law and Justice

[Notification dt. 12-10-2021]