compassionate appointment

Case BriefsSupreme Court

Supreme Court: While addressing a case raising significant question of law on principles governing compassionate appointment, the Division Bench of D.Y. Chandradhud and Hima Kohli, JJ., issued notice to M.P. Government.

The genesis of the case were that the petitioner’s father, who was working as Process Writer in District Court establishment had preferred an application seeking voluntary retirement on medical grounds. An application was also preferred to provide compassionate appointment to the petitioner as per circular of General Administration Department (GAD) dated 10-06-1994; i.e. Scheme of Compassionate Appointment.

Chronology of Events

The chronological dates of events which lead to instant appeal were as follows:

  • 06-12-1994: The father of the petitioner preferred an application for compassionate appointment.
  • 03-01-1995: The scheme of compassionate appointment stood withdrawn/amended.
  • 09-03-1995: The petitioner was appointed on compassionate grounds.

Termination of the Petitioner

In the furtherance of M.P. High Court’s directions issued in Mansukh Lal Saraf v. Arun Kumar Tiwari, 2015 SCC Online MP 7435, which was upheld by the Supreme Court in M.P. Nagar Nigam v. Mansukh Lal Saraf, (2020) 18 SCC 606, the State government had examined validity of the petitioner’s appointment.

Resultantly, petitioner was put to notice by the District Court establishment and; in turn, he filed his response. The State opined that the circular dated 10-06-1994 which permitted appointment of petitioner on the ground of voluntary retirement of his father, stood withdrawn/cancelled much before the date of his appointment, hence a termination order was issued against the petitioner declaring his appointment as illegal.

Findings of the High Court

The M.P. High Court observed that compassionate appointment can be made provided there exists an enabling policy/provision and that there is no unfettered or unlimited discretion with the employer to appoint anybody on compassionate basis unless there exists a provision for such appointment.

The High Court opined that though the circular dated 10-06-1994 provided for appointment on compassionate basis, the said circular stood withdrawn when the petitioner’s appointment order was issued. Thus, the Court held that on the date of appointment of petitioner, there was no enabling provision in existence on the strength of which such appointment order could have been issued and in absence of any such enabling provision, the appointment of petitioner could not be treated as “irregular” appointment rather it was an “illegal appointment”. Hence, the High Court had upheld government’s decision to terminate the petitioner from service.

Question of Law

Whether compassionate appointment will be governed by the appointment scheme as it stood on the date of application for appointment or the scheme which prevailed on the date of appointment?

Grievances of the Petitioner

The petitioner submitted that though the scheme was withdrawn/amended vide the new scheme dated 03-01-1995, his application/process for appointment under the earlier scheme was already processed by the State and he was appointed vide Order dated 09-03-1995. Hence, the petitioner had challenged the termination order stating that he had served more than 22 years of continuous and uninterrupted service and his service could not be termed as illegal owing to the facts that on the date of application of appointment the scheme in question (Circular dated 10-06-1994) was very much applicable.

The petitioner contended that the High Court had failed to take note that, the application for appointment was based on the old scheme and the new scheme only came into effect the after application was submitted. Further, the Petitioner was never asked to reapply or the application was not rejected during interview process; rather he was appointed.

Reliance was placed by the petitioner on SBI v. Jaspal Kaur, (2007) 9 SCC 571, to contend that an administrative or executive order cannot have retrospective effect so as to take away the right accrued/vested right available to the Petitioners/employees. Therefore, the petitioner argued that the Circular dated 03-01-1995 (new scheme) will   have no applicability in his case since it is trite in law that every order/scheme/policy decision shall apply prospectively and not retrospectively.

Conclusion

In the Backdrop of above, the Court had issued notice to the State government. Additionally, the recovery initiated against the petitioner pursuant to the impugned order of the High Court was also stayed by the Court.

Evidently, a case on the similar question of law had been referred to be adjudged by a larger Bench of the Supreme Court in SBI v. Sheo Shankar Tiwari, (2019) 5 SCC 600, wherein the Bench had opined that principles emanating judicial precedents are not consistent and do not reconcile.

[Rakesh Dubey v. District & Session Judge, Jabalpur, 2022 SCC OnLine SC 582, order dated 29-04-2022]

Appearance by:

For the Petitioner: AOR Swarnendu Chatterjee, Senior Advocate Siddharth Bhatnagar, Advocate Himanshu Nailwal, Advocate Ambuj Tiwari, Advocate Pracheta Kar, Advocate Aditya Sidhra and Advocate Nadeem Afroz

Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Bombay High Court: Ravindra V. Ghuge, J., decides a matter as to whether the benefit of compassionate appointment can be granted to the legal heir of the employee, who took voluntary retirement and was never certified as being medically unfit to perform any work, though the reason for opting for retirement was a serious medical condition.

The wife of the deceased addressed the Chief Executive Officer of Zilla Parishad contending that she had no knowledge that her husband had applied for voluntary retirement. Further, she added that he could not sign, and somebody had filled in an application for retirement on his behalf, by way of mischief.

What was the controversy?

After the deceased was granted voluntary retirement in the backdrop of the medical opinion that he was not medically unfit, whether it would entitle petitioner 2 to compassionate appointment?

High Court took into consideration the plight of the deceased and the ignominy that he was suffering. The office colleagues of the deceased used to notice his severe medical problem and he was living a normal life since he was not able to perform any duties, he had become unwanted and undesirable.

After the deceased was relieved on 5th May, 2019, he was admitted to the hospital and passed away within 3 months in the hospital. In view of the said, the time lag after he was relieved and his death, supported the Court’s view.

The Advocate for the Zilla Parishad referred to Cause ‘B’ of Government Resolution to contend that legal representatives can be considered for compassionate appointment if the father/mother was relieved from employment due to a medical condition prior to completing the age of 50 years.

The above view, in Court’s opinion, was discriminatory and capricious.

It was clear that the deceased did not seek voluntary retirement at the stroke of superannuation, also he did not pretend to be ill or incapacitated to facilitate employment for his son.

As per the facts and circumstances of the case, he was indeed seriously ill and the neurological problem that he was suffering from, was life-threatening considering the MRI scan of his brain conducted by the neurosurgeon. His physical condition continued to deteriorate, and the entire department confirmed the view that he was incapacitated, and he was not in a condition to perform any work, even soft work.

In view of the above, the petition was partly allowed.

The following directions were issued:

  • Petitioner 2, son of the deceased be enlisted in the list of the eligible candidates for compassionate appointment, considering his representation made before he graduated.
  • His seniority in the list of eligible candidates would be from the date when he became an Engineering Graduate.
  • The Chief Executive Officer, Zilla Parishad would consider the availability of a vacancy on which the petitioner 2 could be appointed and accordingly issue an appointment order as and when such vacancy arises.

[Anita Bhujang Wagalgave v. State of Maharashtra, 2022 SCC OnLine Bom 942, decided on 12-4-2022]

Advocates before the Court:

Mr. A.D. Sonkawade, Advocate for petitioners

Ms. R.P. Gaur, AGP for respondents 1 and 2

Mr. S.S. Manale, Advocate for respondent Nos. 3 and 4

High Court Round UpLegal RoundUpTribunals/Regulatory Bodies/Commissions Monthly Roundup

Interesting picks from this week’s legal stories from High Courts to District Courts

Alimony

Whether husband is entitled to claim alimony under Section 25 of the Hindu Marriage Act, 1955? Bom HC decides

A conjoint reading of Sections 24 and 25 of the Hindu Marriage Act, 1955 would reveal that both the sections in the Act of 1955 are enabling provisions and confer a right on the indigent spouse to claim maintenance either pendente lite or in the nature of permanent alimony and maintenance.

Read full report here…

 Karta

 Daughters and widow of a deceased would inherit properties of deceased as tenants in common or joint tenants? Bom HC explains 

Mangesh S. Patil, J., expressed that, by virtue of Section 19 of the Hindu Succession Act, it has been explicitly made clear that if two and more heirs succeed together to the property and in the estate, they take the property as tenants in common and not as joint tenants.

Read full report here…

Compassionate Appointment

Illegitimate child’s right to be considered for Compassionate appointment: Read what Chh HC says

Sanjay K. Agarwal, J., held that an illegitimate son would be entitled to consideration on compassionate ground and cannot be denied consideration on the ground that he is the illegitimate son of the deceased Government servant.

Read full report here…

Marriage Expenses

Can unmarried daughters claim expenses of marriage from their parents under the Hindu Adoptions and Maintenance Act, 1956? Chh HC addresses

While stating that, in Indian society, normally expenses are required to be incurred for pre-marriage and also at the time of marriage, the Division Bench of Goutam Bhaduri and Sanjay S. Agrawal, JJ., held that unmarried daughters have a right to claim expenses of marriage from their parents under the Hindu Adoptions & Maintenance Act, 1956.

Read full report here…

Maternity Leave

Can maternity leave benefits extend beyond the period when contractual period of an ad hoc employee comes to an end? Del HC analyses

In a claim of maternity benefit by a contractual employee, the Division Bench of Rajiv Shakdher and Talwant Singh, JJ., expressed that, The Maternity Benefit Act, 1961 Act is a social legislation that should be worked in a manner that progresses not only the best interest of the women-employee but also of the child, both at the pre-natal and post-natal stage.

Read full report here…

Strikes

Bar on Government servants to engage in strikes? Ker HC elaborates

While expressing that, it is the duty of the welfare Government to protect not only the citizens but to continue with, all the Government work as expected, the Division Bench of S. Manikumar, CJ and Shaji P. Chaly, J., directed that Government servants should be prevented from engaging in a strike.

Read full report here…

Evidentiary Value of Newspaper Reports

Newspaper reports are of no evidentiary value and Courts would be transgressing their well-settled limitation if cognizance were to be taken of such unsubstantiated and unverified reports

In a matter wherein, details were sought with regard to Supreme Court Collegium meeting held on 12-12-2018, Yashwant Varma, J., expressed that, newspaper reports are of no evidentiary value and Courts would be clearly transgressing their well-settled limitation if cognizance were to be taken of such unsubstantiated and unverified reports.

Read full report here…

Anand Marriage Act

State directed to take steps to frame and notify Rules for Registration of Sikh Marriages

The Division Bench of Sanjaya Kumar Mishra, ACJ. and Ramesh Chandra Khulbe, J. took up a PIL filed by the petitioner commanding the respondent State to notify the Rules under Anand Marriage Act, 1909 and also to issue guidelines to register the marriage of people of Sikh Community under the Anand Marriage Act, 1909.

Read full report here…

Bribes

Every Advocate is a Court officer and part & parcel of the justice delivery system: Madras HC found a Govt. Advocate demanding bribes at the cost of justice

The Division Bench of K. Kalyanasundaram and R. Hemalatha, JJ., expressed that, the Government advocate being the representative of the Government has to act in an honest manner. If he/she goes around with the intention to make money at the cost of justice, only chaos will prevail.

Read full report here…

Insolvency

Logix Insolvent? NCLT initiates insolvency proceedings against Logix City Developers

The Coram of Bachu Venkat Balaram Das (Judicial Member) and Narender Kumar Bhola (Technical Member) initiates insolvency proceedings against Logix City Developers due to default in payment.

Read full report here…

Custody Parole

Merely because an accused is a Muslim, governed by personal laws, can be debarred from availing rights under Juvenile Justice (Care and Protection of Children) Act, 2000? Delhi Court answers

In a matter for grant of custody parole, Dharmender Rana, ASJ-02, held that, merely because the accused is Muslim and governed by personal laws, he cannot be debarred from availing rights conferred upon him by Juvenile Justice (Care and Protection of Children) Act, 2000.

Read full report here…

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agarwal, J., held that an illegitimate son would be entitled to consideration on compassionate ground and cannot be denied consideration on the ground that he is the illegitimate son of the deceased Government servant.

The petition was directed against the order by which respondent 2 had directed the petitioner to obtain a succession certificate in order to claim a compassionate appointment on account of the death of his father.

The father of the petitioner died in harness on being infected by COVID-19.

Suresh Kumar Anchal was the son of the deceased’s first wife and had claimed compassionate appointment, whereas the son (present petitioner) through wife Tara Devi had also filed an application for compassionate appointment.

Respondent 2 had directed Tara Devi and the present petitioner to obtain a succession certificate, by the impugned order.

Issue for consideration

Whether petitioner’s mother was the first wife of the deceased Government servant or the mother of Suresh Kumar Anchal, who also claimed compassionate appointment being another son of the deceased from Rajkumari, was the first wife of the deceased Government servant?

High Court stated that the fact remains that even the illegitimate son/daughter is also entitled to a compassionate appointment.

Who amongst the two sons would be entitled to the compassionate appointment?

High Court noted that, the candidates who would be eligible for compassionate appointment have been given in para 5 of circular dated 14-6-2013, which shows that preference has been given for consideration on compassionate ground in para 5 and if a widow or widower of the deceased Government servant is not eligible, then only, son / adopted son would be entitled to consideration and in absence of that, daughter / adopted daughter would be entitled to consideration.

Patna High Court in Raj Kishore Kumar v. State of Bihar, 2009 SCC OnLine Pat 582, held that it is the settled principle of law that the entitlement to the compassionate appointment has to be considered in order of seniority, i.e., case of the elder brother will have the first priority and only if his case is rejected then the case of the younger brother shall be considered.

In view of the above decision of the Patna High Court, this Court remitted the matter to the respondent authorities to consider the application after giving them an opportunity to file representation qua their entitlement/eligibility.[Piyush Kumar Anchal v. State of C.G., 2022 SCC OnLine Chh 513, decided on 7-3-2022]

Advocates before the Court:

For Petitioner: Mr. Rakesh Pandey, Advocate.

For Respondent No.1 / State: –

Mr. Amrito Das, Additional Advocate General.

For Respondents No.2 to 5: –

Mr. B.D. Guru, Advocate.

Case BriefsSupreme Court

Supreme Court: Holding that the condition imposed by the Railway Board circular that compassionate appointment cannot be granted to children born from the second wife of a deceased employee is discriminatory, the 3-judge bench of UU Lalit, S. Ravindra Bhat and PS Narsimha*, JJ has held that an applicant cannot be denied consideration under the scheme of compassionate appointments only because he is the son of the second wife of his father.

The Court applied the law laid down by the Court in Union of India v. V.R. Tripathi, (2019) 14 SCC 646, wherein it was held that such a denial is discriminatory, being only on the ground of descent under Article 16(2) of the Constitution.

The Court, in the said judgment, had held that the scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has no nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it would be impermissible to exclude them from being considered under the policy.

“Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee.”

Relying on a number of Supreme Court rulings, the Court observed that compassionate appointment is an exception to the constitutional guarantee under Article 16, a policy for compassionate appointment must be consistent with the mandate of Articles 14 and 16. That is to say, a policy for compassionate appointment, which has the force of law, must not discriminate on any of the grounds mentioned in Article 16(2), including that of descent. Hence, in this regard, ‘descent’ must be understood to encompass the familial origins of a person.

“Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimant’s legitimacy as their child. The policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant.”

[Mukesh Kumar v. Union of India, 2022 SCC OnLine SC 229, decided on 24.02.2022]

*Judgment by: Justice PS Narsimha

Counsels

For Appellant: Advocate Manish Kumar Saran

For Respondent: Advocate Meera Patel

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Manindra Mohan Srivastava and Anoop Kumar Dhand, JJ. dismissed the petition on the ground that the writ petition filed by the petitioners is without any substance.

The brief facts of the case are such that the husband of the petitioner Mool Singh was working on the post of ‘Darban’, expiredin 2003. The petitioner 1 approached the concerned authorities for seeking compassionate appointment for the son i.e. the petitioner 2 Hazari Lal. While considering petitioners’ case by the respondents, they were informed about the ban on direct recruitment on Group “C” and “D” posts. The petitioner 2 made various representations in the year 2005, 2006 wherein the respondent’s authorities informed the petitioners that no post in Group “C” is vacant and denied appointment. After a period of more than ten years of denial of compassionate appointment, the petitioners again started making representations to the authorities wherein the respondents again re-considered the matter and rejected the claim of the petitioners. Without challenging the previous orders the petitioners submitted Original Application before the Tribunal. The Tribunal rejected the original application of the petitioners on the ground that the request for compassionate appointment cannot be entertained at such a belated stage. Feeling aggrieved with the impugned order, the petitioners filed this petition before this Court.

The Court relied on judgment State of J&K v. Sajad Ahmed Mir, (2006) 5 SCC 766 and observed that an appointment to public offices should be made on the basis of competitive merits. It was further observed that once it is proved that inspite of the death of the breadwinner, the family survived and the substantial period is over, there is no need to make appointment on compassionate ground, at the cost of interests of several others ignoring the mandate of Article 14 of the Constitution of India.

The Court relied on judgment Umesh Kumar Nagpal v. State of Haryana, (1994) 4 SCC 138 wherein it observed that compassionate appointment cannot be granted after a lapse of a reasonable period which must be specified in the rules. The consideration for such employment is not a vested right which can be exericsed at any time in future. The object being to enable the family to get over the financial crisis which it faces at the time of the death of the sole breadwinner, the compassionate employment cannot be claimed and offered whatever the lapse of time and after the crisis is over.

The Court thus observed that In the present case also, as already indicated above, the petitioners approached the Tribunal after a lapse of almost 13 years from the date of death of the employee concerned. Hence looking at the material available on the record, and after applying the law laid down by the Supreme Court in the judgments referred we are of the considered opinion that the contentions put forward by the counsel for the petitioners, do not carry any merit, as the subsequent representations were made after a decade.

The Court thus held “this Court is not able to accept the claim of the petitioners for compassionate appointment after a great lapse of 17 years. Thus, the impugned order dated 19.08.2021 passed by the Tribunal warrants no interference by this Court.”

[Parwati Devi v. Director & Nodal Officer, Ministry of Mines, 2022 SCC OnLine Raj 410, decided on 08-02-2022]

 Appearances:

For Petitioner(s): Mr. Sanjay Mehla

Arunima Bose, Editorial Assistant has reported this brief.

High Court Round UpLegal RoundUp

82 Judgments from the High Courts of the Country, you wouldn’t want to miss. Here’s a short recap from the month of January 2022.

Allahabad High Court

Strikes by Advocates

To condole demise of any member or anyone else, can Members of Bar obstruct functioning of Courts? All HC decides

J.J. Munir, J., expressed that,

The Members of the Bar are free to hold a meeting to condole the demise of any member or anyone else, but they do not have the right to obstruct the functioning of Courts.

Read full report here…

Motor Accident Claim 

Taking Rs 15,000 as notional income of a family member who is non-earning, in a motor accident claim: Is it reasonable? All HC decides

The Division Bench of Dr Kaushal Jayendra Thaker and Ajai Tyagi, JJ., enhances quantum of award of a non-earning member in a motor accident claim, while referring to the Supreme Court decision in Kurvan Ansari v. Shyam Kishore Murmu, 2021 SCC OnLine SC 1060.

Read full report here…

Settlement

Settlement terms decided by Mediation and Conciliation Centre, can be the reason for quashing of an FIR under S. 482 CrPC: All HC

Rajeev Singh, J., reiterated that under Section 482 of the Criminal Procedure Code, an FIR i.e. First Information Report can be quashed in view of the settlement terms.

Read full report here…

Maintenance

Can wife claim maintenance under S. 125 CrPC where appeal is pending against divorce granted under S. 13 HMA? All HC decides

When a divorce decree under Section 13 of the Hindu Marriage Act is passed the wife of such annulled marriage can claim maintenance under Section 25 of Hindu Marriage Act.

Read full report here…

Caste System

“…we boast ourselves as an educated society, but we live our lives with double standards”: Allahabad HC condemns prevailing caste system even after 75 years of independence

While expressing that “Caste system in our society is deeply rooted, we boast ourselves as educated society, but we live our lives with double standards” Rahul Chaturvedi, J., granted bail to an accused of cold-blooded murder in an alleged honour killing case. 

Read full report here…

Andhra Pradesh High Court

 LGBTQ+ community’s right to reservation; Can a transgender claim to be appointed by reservation in spite of failure to secure minimum cut off marks in screening test? HC answers

In a significant case wherein, a transgender had approached the Court seeking benefit of reservation for appointment in police department, M. Satyanarayana Murthy, J., denied to issue direction to the State in favour of the petitioner

Read full report here…

Bombay High Court

Feeding of Dogs

Feeding of Dogs inside complex v. Feeding of Dogs outside complex: Bom HC appoints amicus curiae to assist Court in resolving dispute

The Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., addressed a matter in which a dispute revolved with regard to the feeding of dogs in the society complex.

Read full report here…

Elections for Sarpanch

Candidate contesting elections for Sarpanch post making “self-declaration” that he/she has “toilet” at their residence, is sufficient compliance under Maharashtra Village Panchayat Act? Bom HC examines

G.S. Kulkarni, J., considered the question,

Whether a “self-declaration” made by a candidate contesting elections to the post of Sarpanch, that he/she has a “toilet” in a house where he/she resides was sufficient compliance, to be not disqualified under Section 14(1) (j-5) of the Maharashtra Village Panchayat Act, 1959?

Read full report here…

Domestic Violence Act

Whether right to claim monetary reliefs, protection order and compensation under the D.V. Act, extinguish on death of “aggrieved person”? Bom HC explains

Sandeep K. Shinde, J., examines whether an application under Section 12 of the Domestic Violence Act on behalf of relatives of deceased seeking monetary relief, possession of ‘stridhan’ and compensation was maintainable or not.

Read full report here…

Employees Compensation Act

Can ‘minor’ who succumbed to an accident during course of employment be compensated under Employees Compensation Act or Insurance Company will be absolved of its liability? Bom HC explains

Workmen’s Compensation Act, 1923 does not prohibit payment of compensation to a minor.

Read full report here…

False Promise of Marriage

False promise of marriage to satisfy lust, leading to offence of cheating and rape?: Bom HC refuses to quash FIR for offences under Ss. 376, 417 IPC

The Division Bench of A.S. Chandurkar and G.A. Sanap, JJ.,  refused to exercise jurisdiction under Section 482 CrPC for quashing an FIR in offences of cheating and rape in the matter wherein the applicant/accused committed sexual intercourse with the girl against her will in the pretext of the false promise of marriage.

Read full report here…

Law on Section 498-A IPC

Can an alleged girlfriend be arrayed as an accused in a crime registered under S. 498-A IPC? Bom HC reiterates SC’s observation

The Division Bench of V.K. Jadhav and Shrikant D. Kulkarni, JJ., reiterated that an alleged girlfriend cannot be arrayed as accused in an offence registered under Section 498-A of Penal Code, 1860.

Read full report here…

Maintenance to Senior Citizen

Son ousted benighted widowed mother, deprived her right to “live a normal life” apart from maintaining and supporting her livelihood: Bom HC

G.S. Kulkarni, J., while addressing another unfortunate case concerning a mother who was ousted from the tenement she owned by her own son. In view of the said, Court expressed that,

This appears to be another clear case where the petitioner(son) has no other intention but to enjoy the tenement exclusively, ousting the roof over his mother’s head, taking advantage of her incapacity at such an old age.

Read full report here…

Property

Can a girl be treated as property and given in donation? Bom HC addresses in light of “Daanpatra” executed by father of a daughter

“When the girl as per her own statement is minor, then why the father who is in all respect guardian of the girl should give the girl as Daan? A girl is not a property which can be given in donation.”

Read full report here…

 Calcutta High Court

 Compassionate Appointment

Daughter-in-law who obtains compassionate appointment by stating that she will take responsibility of her mother-in-law is bound by that undertaking: Cal HC

80-year-old widow approaches Court to seek direction towards her daughter-in-law to provide for her maintenance as she had taken compassionate appointment on the death of her son, Division Bench of Prakash Shrivastava, CJ and Rajarshi Bharadwaj, J., held that the daughter-in-law is bound by the undertaking by which she had obtained a compassionate appointment.

Read full report here…

 Delhi High Court

Termination of Pregnancy

Foetus with severe cardiac anomaly, but pregnancy beyond 24 weeks: Can a mother be permitted for termination of pregnancy? Del HC explains in light of ‘mental health’ of mother

“…entire medical regime would expose the child to intra and post-operative complications and may lead to further complexities, adversely impacting the quality of the child’s life.”

Read full report here…

Arbitration

Future Retail seeking to terminate arbitration proceedings with Amazon: Read Delhi HC’s decision on 4 significant points

Amit Bansal, J., noted that,

“…there is only a very small window for interference with orders passed by the Arbitral Tribunal while exercising jurisdiction under Article 227. The said window becomes even narrower where the orders passed by the Arbitral Tribunal are procedural in nature.”

Read full report here…

‘Stay’ on proceedings before Singapore Tribunal; Prima Facie case in favour of Future Group

The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., stayed the arbitration proceeding in Amazon v. Future Group before the Singapore Tribunal.

Read full report here…

Arrest and Incarcerations

‘Arrest, incarceration destroys a person and affects innocent relatives’: Del HC sentences police officer to 1-day SI for contempt of court, breach of directions in Arnesh Kumar case

Najmi Waziri, J., observed that “Arrest and incarceration destroys a person and collaterally affects many other innocent relatives. Subsequent release or acquittal of an innocent, is of no solace and offers no reparation to the loss of reputation or for the temporary loss of precious personal liberty.”

Read full report here…

Divorce

“Overseas wife”, 11 years old marriage, husband visited wife for few days on yearly visits from Canada: A moribund marriage or not? Del HC decides

While addressing a matter of divorce proceedings, the Division Bench of Vipin Sanghi and Jasmeet Singh, JJ., expressed that,

“…every marriage, where the couple stays apart from each other for work or other obligations consensually, is a broken one.”

Read full report here…

Bail

Delhi HC explains when a Court can seize liberty of an accused undertrial

Subramonium Prasad, J., while explaining the facets of cancellation of bail and rejection of an application for bail, made an observation that,

Personal liberty is one of the cherished constitutional freedoms. Once granted to an accused pending completion of the Trial, it must only be retracted in the face of grave and exacerbating circumstances.

Read full report here…

Can gravity of offence be the sole ground to deny bail? Del HC decides in a multi-person scam involving Rs 200 Crores

Subramonium Prasad, J., addressed whether the magnitude of offence can be the only criterion for granting bail and further explained the object of bail.

Read full report here… 

Compromise

Will Delhi HC allow waiving off alleged offence of rape in view of compromise and subsequent marriage between complainant and accused? Read to know

Stating that, Rape is an act against society, Rajnish Bhatnagar, J., held that simply entering into a compromise allegation of rape will not lose its gravity.

Read full report here…

Desertion

Wife refused to join company of husband on ground of ‘auspicious time’. Would this amount to ‘desertion’ by wife? Chh HC elucidates

The Division Bench of Goutam Bhaduri and Rajani Dubey, JJ., held that the wife refusing to join the company of her husband in view of waiting for auspicious time, would amount to desertion. 

Read full report here…

Disinvestment

Dr Subramanian Swamy’s plea that Air India’s Disinvestment is arbitrary, illegal, corrupt: 5-pointer report of Del HC decision

The Division Bench of D.N. Patel, CJ and Jyoti Singh, J., dismisses Dr Subramanian Swamy’s plea stating that any delay in the process of disinvestment of Air India would cause loss to public exchequer, besides creating uncertainty amongst the existing employees.

Read full report here…

Matrimonial Expenses

‘Unmarried daughter, even if earning, can’t be assumed to have sufficient resources to meet matrimonial expenses’: Del HC orders father to pay marriage expenses of daughters

 Father’s duty to maintain his unmarried daughters, including his duty to provide for their marriage is clearly recognized by the law.

Read full report here…

Sexual Assault

 Del HC upholds conviction for rape and penetrative sexual assault where ‘wife’ was below 18 yrs of age

Mukta Gupta, J., decided an appeal challenging the impugned decision whereby the appellant had been convicted for the impugned decision whereby he had been convicted for offences punishable under Section 376 of Penal Code, 1860 read with Section 4 of the POCSO Act and the order on sentence dated 15-1-2020 whereby the appellant had been directed to undergo rigorous imprisonment for a period of 10 years and a fine of Rs 10,000, in default whereof to undergo simple imprisonment for a period of six months. 

Read full report here…

False invocation of Ss. 354A, 506 IPC merely trivalises offence of sexual harassment casting doubt on veracity of allegations by victim who has in reality faced sexual harassment: Del HC

Subramonium Prasad, J., expressed its anguish at how provisions such as Sections 354A/506 of Penal Code, 1860 are falsely invoked at the drop of a hat to register one’s displeasure at the conduct of another individual.

Read full report here…

Trademark

Why is ‘Rooh Afza’ seeking injunction against ‘Dil Afza’? Here’s how Del HC stressed upon ‘deep emotion’ while deciding

Buying a bottle of sharbat may involve emotions, but not deep to the extent hoped for by the learned counsel for the plaintiffs. In any case, those who appreciate this deep emotion would be the first to be able to distinguish between ‘Rooh’ and ‘Dil’.

Read full report here…

Del HC restrains Courtyard Holidays World Private Limited from using registered trademark “COURTYARD”: Read a detailed report on trademark infringement case

Asha Menon, J., in a trademark infringement case, restrained the ‘Courtyard Holidays World Private Limited’ from using the impugned marks “COURTYARD”, “COURTYARD HOLIDAYS”, “COURTYARD HOLIDAYS WORLD”, and/or any other mark/logo or label and/or domain name which is identical or similar to the Plaintiff’s registered trademarks “COURTYARD”.

Read full report here…

Conviction

Son-in-law inflicts injury with axe on mother-in-law and wife, Challenges conviction under S. 307 IPC: Del HC revisits law while refusing to interfere

It is trite law that for conviction for an offence punishable under Section 307 IPC, it is not necessary that the victim should suffer an injury and, in a case, where the offence is committed with an intention to commit the murder of the victim, Section 307 IPC would be attracted as in the case of firing when no resultant injury is suffered by the victim.

Read full report here…

Faceless Assessment Scheme

Provision of Personal Hearing would defeat the purpose of Faceless Assessment Scheme? Del HC decides

The Division Bench of Manmohan and Navin Chawla, JJ., while focusing on the principles of natural justice and right to personal hearing observed that,

“Faceless Assessment Scheme does not mean no personal hearing.”

“An assessee has a vested right to personal hearing and the same has to be given, if an assessee asks for it.”

Read full report here…

Judicial Overreach

Photograph of summons sent through WhatsApp as an addition to ordinary process would amount to Judicial Overreach? Del HC decides

Amit Bansal, J., expressed that

Just because the photograph of the summons were sent by the plaintiff to the defendant through WhatsApp cannot amount to overreaching the judicial system or running a parallel system with the judicial system.

Read full report here…

Insurance Claim

Whether insurance company is liable to pay claim even if vehicle stolen and unauthorisedly driven? Del HC decides

…if the proposition of the insurance company was accepted, it would militate against the very concept of a beneficial legislation for the victims of an accident. If such a finding were to be returned then the effect would be that even though a vehicle is insured but is stolen, not only would the insurance company be entitled to avoid its liability but the owner of the vehicle who has insured his vehicle against theft and accident would be saddled with a liability for no fault of his.”

Read full report here…

Law on Rejection of Plaint

Contents of plaint or Examining sufficiency of plaint? Del HC explains the bounden duty of Court

Prateek Jalan, J., expressed that,

For the purposes of an order under Order VII Rule 11 of the CPC, the Court must come to the conclusion that the plaint is required to be rejected.

Read full report here…

Victims’ Rights | Fair Trial

Fair trial is the hallmark of criminal procedure, it entails not only rights of victims but also interest of accused: Delhi HC

“It is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the case.” 

Read full report here…

Maintenance

Court under maintenance proceedings under S. 125 of CrPC, can usurp jurisdiction of Civil Courts? Del HC decides

Chandra Dhari Singh, J., decided a maintenance case wherein the marital status of the parties was the crux of the matter and expressed that,

“…there is no straight jacket formula for judging the validity of the marriage between the parties.”

Read full report here…

Misconduct

Customer produced to prove the guilt of misconduct by Conductor of DTC Bus: Is it correct? Del HC answers while reiterating established position of law

Prathiba M. Singh, J., while examining a case which was dismissed 30 years ago with regard to a workman’s misconduct, reiterated the well-established law that, customers’ need not be produced in such proceedings in order to prove the misconduct of the workman.

Read full report here…

 Gujarat High Court

Conjugal Rights

Can a wife be forced to cohabit and establish conjugal rights? Or can a decree do so? Guj HC answers

A marriage between Mohammedans is a civil contract and a suit for restitution of conjugal rights is nothing more than an enforcement of the right to consortium under this contract.

Read full report here…

POCSO

Court goes beyond the relief sought, helps POCSO victim to become self-sufficient

The Division Bench of Sonia Gokani and N.V. Anjaria, JJ. went beyond the case to help a POCSO victim to continue her further studies from her parental home. Order was issued against a Criminal Misc. Application filed by the desirous victim pleading the Court to allow her to handover the custody of her minor daughter and join her parents. The applicant was called before the Court with her child before passing of the order.

Read full report here…

Senior Citizen Act

Senior Citizen Act cannot rescind Domestic Violence Act

“The law protecting the interest of senior citizens is intended to ensure that they are not left destitute, or at the mercy of their children or relatives. Equally, the purpose of the PWDV Act 2005 cannot be ignored by a sleight of statutory interpretation. Both sets of legislation have to be harmoniously construed.”

Read full report here…

Himachal Pradesh High Court

Internet Services

Petition filed highlighting the plight of residents of the State regarding internet services in view of virtual classes/courtrooms etc.; Elaborate suggestions laid down

A Division Bench of Tarlok Singh Chauhan and Chander Singh Barowalia JJ.  directed the respondents to comply with the directions given and report compliance on the next date of hearing.

Read full report here… 

Compassionate Appointment

Compassionate appointment is not a matter of right but subject to policy changes; appointment rightly rejected to son as mother is already employed with PWD

Read full report here…

Order 18 Rule 17-A CPC

Power under Or. 18 R. 17 CPC cannot be invoked to fill up omission in the evidence already led by a witness

“…basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, once the Court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the Court.”

Read full report here…

Jammu and Kashmir High Court

Dowry Death

Dowry Prohibition Act vis-a-vis J&K Dowry Restraint Act; HC blurs the line between the two

In a case alleging dowry death, Rajnesh Oswal, J., clarified the scope and applicability of Jammu and Kashmir Dowry Restraint Act 1960. Observing that the Trial Court had conducted mini trial at the stage of framing of charge, the Bench expressed,

“The trial court was considering issue with regard to framing of charge under section 304-B RPC but the trial court got swayed by the definition of dowry as defined under the Act of 1960 forgetting the legislative intent behind making the amendment, more when the definition was elastic even for the purpose of Act of 1960 by the use of expression “In this Act unless the context otherwise requires”.

Read full report here…

Jharkhand High Court

 Maintenance

What is the effective date of grant of maintenance? Is it the date of judgment or the date of filing of maintenance application?

Anubha Rawat Choudhary, J., held that right to claim maintenance must date back to the date of filing the application since the period during which the maintenance proceedings remained pending is not within the control of the applicant.

Read full report here…

Civil Services

Mistakenly entered wrong digit of Roll No. in OMR sheet? Can one seek to add obtained scores when the sheet is rejected by Scanning Machine? HC answers

 S.N. Pathak, J., rejected the petition filed by a civil services candidate, who was declared unsuccessful in prelims examination due to darkening wrong last digit of roll number in OMR sheet. The Bench stated,

“May be the petitioner has not intentionally darkened digit 6 instead of 8, but sympathy has no place in the eyes of law. The law will prevail in view of the terms and conditions as mentioned in the Advertisement, Admit Card and that of the Rules framed by the JPSC.”

Read full report here…

Kerala High Court

 CLAT PG-2021

Is confining Selection process of NTPC to CLAT PG-2021 candidates only prima facie discriminatory? HC to decide

V.G. Arun, J., held that the practice of confining selection process to CLAT PG-2021 candidates only for the post of Assistant Law Officer at NTPC was prima facie discriminatory. However, without expressing anything further on the matter the Bench had adjourned the matter for further hearing with the direction to the Central Government and NTPC to file a detailed counter affidavit in that regard.

Read full report here…

Guardian of Property

Guardian of Property v/s Guardian of Person of the minor; HC clarifies jurisdiction of District Court

The Division Bench of A. Muhamed Mustaque and Sophy Thomas held that the District Court cannot entertain petition to appoint guardian of the person of the minor child, however power to appoint guardian of the property of the minor is well within the jurisdiction of the District Court. The Bench clarified, the fact that a court cannot appoint a guardian of the person, is no bar for appointing a guardian of the property.

Read full report here…

Maintenance

Right to maintenance of child born out of inter-faith marriage: Is father under obligation to maintain his children even when there’s no statutory stipulation? HC answers 

In a significant case regarding Right to maintenance of child born out of inter-faith marriage, the Division Bench of Dr. Kausar Edappagath and A. Muhamed Mustaque JJ., held that the child being non sui juris, the State and the Courts as Parens Patriae are bound to protect it irrespective of law being silent in this regard. The Bench expressed,

“We see no reason to deny the children born to an inter-faith couple legal right to claim maintenance from their father for the reason that there is no specific statutory provision mandating such a father to maintain his children.” 

Read full report here…

Karnataka High Court

 Sale Deed

Will an ex post facto approval validate a sale deed where prior approval by State Government was a statutory prerequisite? HC answers

Read full report here…

Bail

Bail order not containing cogent reasons liable to be set aside for non-application of mind

The Court observed that The reasons assigned by the Trial Court is nothing but perverse and though elaborately discussed in the order, but the very approach in exercising the discretion under Section 439 of Cr.P.C. it is nothing but capricious order

Read full report here…

Social Classification

Persons with disability are a homogenous class irrespective of social classification; such classification can’t be impeached by linking it with Art. 16 or Art 15

“Persons claiming social reservation fall in one compartment and persons with disabilities who are included in the quota fall on a different distinct compartment so there arises no question of violation of Article 14 of the Constitution.”

Read full report here…

Motor Accident

“If relief is not moulded by awarding higher compensation, we will be failing in our duty”; Kar HC discussed compensation vis a vis permanent sexual disability in motor accident cases 

The Court observed that the Motor Vehicles Act, 1988, is a benevolent legislation and the duty is cast upon the Tribunal to award just and fair compensation to the victim of a Motor Vehicle Accident and thus taking into consideration the inflation and constantly depreciating purchasing power of the rupee, the court deemed deem it appropriate to enhance the compensation.

Read full report here…

 Madras High Court

 Right to Relax

Right to Relax in danger? Would installing CCTVs in spas and massage parlours infringe bodily autonomy of a person? Madras HC pens down its view

“Suspicion that immoral activities are taking place in massage centres cannot be reason enough to intrude into an individual’s right to relax for it intrinsically is part and parcel of his fundamental right to privacy.”

Read full report here…

License

Clubs allowing members to bring liquor purchased from outside, and drink without FL-2 license. Is it permissible? Madras HC examines, Issues directions 

“Any Association, Club or otherwise cannot go beyond the scope of its bye laws and the Competent Authorities under the Societies Registration Act are also empowered to initiate action for violation of the bye-laws.”

Read full report here 

Compensation

Rat-bite in hospital, compensation claimed: Madras HC relies on newspaper report since no rejoinder was given by Hospital

“….while examining a particular fact in the Writ Petition, strict rules of evidence do not apply but existence of a fact can be taken judicial note by surrounding circumstances…”

Read full report here…

Outrage the religious beliefs

Expressing opinion with regard to temple restoration, would amount to attract an offence under S. 295-A IPC? Report on Madras HC decision 

G.R. Swaminathan, J., quashed an FIR stating that S. 295-A IPC is attracted only if there is deliberate and malicious intent to outrage the religious beliefs of a particular class.

Read the full report here…

‘On Judgement Day, God shall admonish petitioner for committing un-Christian act’: Read whether Madras HC holds Catholic Priest prima facie accountable under S. 295A IPC for using ‘Bharat Mata’ and ‘Bhuma Devi’ in offensive manner

To uphold the sanctity of the Constitution and maintain public order, the strong arm of law will have to come down heavily on those who seek to disrupt communal peace and amity. 

Read full report here…

State Revenues

Cases involving large scale revenue unresolved for several years, leading to looting of nation’s properties: Read what Madras HC observes

There is a Grouping Section, which is functioning in the High Court. The said Section must be utilised for collecting large scale revenue involved cases now pending before the High Court for many years and the Registry must place all those cases before the Hon’ble the Chief Justice for speedy disposal.

Read full report here…

Conjugal Rights

Whether denial of conjugal rights to a prisoner amounts to violation of Art. 21 of the Constitution of India?  Madras HC answers in light of “extraordinary circumstances”

Expressing that, a convict cannot enjoy all the liberties as are available to a common person, otherwise there would no difference between a law-abiding citizen and a law-violating prisoner, the Division Bench of Munishwar Nath Bhandari, ACJ and Pushpa Sathyanarayana and P.D. Audikesavalu, JJ., held that,

The leave for a specific purpose which may be for undergoing infertility treatment, as such, may not be considered for having conjugal relationship in common parlance, but for extraordinary reason, thus we (High Court) can safely hold that the 1982 Rules itself protect the rights of the prisoner guaranteed under Article 21 of the Constitution of India to the extent it is required.

Read full report here…

 Madhya Pradesh High Court

 Arbitration

Dismissal of application under S. 34 of Arbitration and Conciliation Act of 1996 on ground of limitation will come within the purview of refusing to set aside an arbitration award 

Vishal Dhagat, J. expressed that, dismissal of application under Section 34 of Act of 1996 on ground of limitation will come within the purview of refusing to set aside an arbitration award, therefore, appeal under Section 37 will be maintainable if application under Section 34 is dismissed on ground of limitation. 

Read full report here…

Does Arbitral Tribunal have exclusive jurisdiction to settle disputes relating to “works contract” in State of Madhya Pradesh under the scheme of M.P Madhyastham Adhikaran Adhiniyam, 1983? MP HC explains

Bench expressed,

“…the Act of 1983 provides that whether the parties to a “works contract” incorporate an arbitration agreement or not, any dispute relating to “works contract” shall fall within the exclusive jurisdiction of the Tribunal.”

Read full report here…

Courts should emphasize on bridging the gap between the time period of reservation and delivery of the judgment

“It is the need of the hour to emphasize over the need to pronounce judgment expeditiously and curtailing the time gap between reserving of a case and pronouncing of judgment to the bare minimum, it is vivid that the Tribunal heard and reserved the original application preferred on 20.02.2019 whereafter the impugned judgment was pronounced by the Tribunal on 17.01.2020 i.e. after nearly 11 months, which is a very long period of time”

Read full report here…

State saddled with costs for colourable exercise of power reflecting favours; petition allowed

The Division Bench of Sheel Nagu and Purushaindra Kumar Kaurav, JJ. allowed petition filed under Article 226 of the Constitution filed by Smt Rampyari Patel and quashed impugned order dated 06-07-2021 passed by State Government.

Read full report here…

Disciplinary Proceedings

Delinquent employee in disciplinary proceedings has statutory right to engage a Defence Assistant

The Division Bench of Sheel Nagu and Purushaindra Kumar Kaurav, JJ. allowed the petition filed under Art 226 by an employee facing disciplinary proceedings.

Read full report here…

 Strike

It is duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike; Court dismisses appeal

Sujoy Paul, J. dealt and dismissed a petition while highlighting the increasing issues of strikes and boycotts by the lawyers.

Read full report here…

Reservation

Difficult Areas vis-a-vis Difficult Services, Issues of reservation and incentive marks; HC puts an end to the battle between Doctors and State

 “If we hold that the Demonstrators and Tutors are eligible despite being posted in towns (not covered under difficult, rural or remote areas) as in-service candidates and petitioners are not, it will divide a homogeneous class of ‘in-service candidates’ and will create a class within the class without there being any rationale and justification for the same.”

Read full report here…

 Kazi

 Can a Kazi adjudicate disputes like a Court and pass an order like a decree? MP HC answers

“If a Kazi entertains a dispute and acts as a mediator to settle the dispute between the members of the community that would be permissible, but he cannot adjudicate the dispute like a court and pass an order like a decree.”

Read full report here…

Orissa High Court

Investigating Agency

Court can neither be a mute spectator to the whims and fancies of the investigating agency nor be a party to it; Ori HC observes in a case where final form was submitted after 15 years

The Court held that the inaction of the investigating agency to conclude the investigation for as long as 15 years, that too, without offering even a semblance of explanation is a direct affront to the cherished principle of right to speedy trial ingrained in the provisions of Article 21 of the Constitution of India.

Read full report here…

Public Interest

Retaining an employee in service if he lacks in the standard of efficiency required to discharge the duties of the post he presently holds is not in public interest

“The Court observed that the object of compulsory retirement is to weed out the dishonest, the corrupt and the deadwood. It is true that if an honest Judicial Officer is compulsorily retired it might lower the morale of his colleagues and other members in the service.”

Read full report here…

Punjab and Haryana High Court

 Live-in-relationship

Merely living together for few days is not live-in-relationship; HC imposes cost of Rs 25000 on runaway couple

In a case where a young couple who had started living in a hotel two days ago had approached the Court for protection, Manoj Bajaj, J., imposed a cost of Rs. 25000. The Bench expressed,

“Merely because the two adults are living together for few days, their claim of live-in-relationship based upon bald averment may not be enough to hold that they are truly in live-in-relationship.”

Read full report here…

Bail

Long custody is an essential factor for granting bail under UAPA; HC grants bail to woman lodged in jail along with her infant in connection with a Facebook post

Anupinder Singh Grewal, J., granted bail to the woman who was in custody along with her barely two years old infant in connection with alleged offence committed under UAPA. The main allegation against the petitioner was with regard to a Facebook post supporting banned organization ‘Sikhs for Justice 2020 Referendum’.

Read full report here…

Divorce

Are Recordings of Private Conversation between Husband and Wife permissible as evidence under S. 13 of HMA, 1955? HC decides 

Lisa Gill, J., held that to permit a spouse to record conversations with an unsuspecting partner and to produce the same in a court of law, to be made the basis of deciding a petition under Section 13 of the Act cannot be permitted.

Read full report here…

Investigation

P&H HC stresses upon adopting contemporary methods of investigation rather than taking third-degree shortcuts

Bench reiterated that,

“police faces a very uphill task in dealing with criminals, especially hardened criminals and the work done by the police force and any investigating agency is to be highly appreciated, in trying to apprehending criminals and actually apprehending them and bringing them to justice; yet, as per the constitutional scheme and the statutory provisions framed thereunder in India, not even the worst criminal can be denied a fair procedure in terms of the statutory provisions laid down in the Code of Criminal Procedure, 1973, and any such law in force.” 

Read full report here…

Rajasthan High Court

Mother tongue or English as a medium of instruction? Raj HC dealt with the issue when State decided to convert a Hindi medium school to English medium

“…the rights of the petitioners and the pupil of the school to have instructions in Hindi that are protected under Article 19(1)(a) of the Constitution of India and such rights can be diluted only by way of a legislation enacted in the contingencies mentioned in cause (2) of Article 19.”

Read full report here…

Police Protection

Courts are not meant to provide police protection to youths who have fled to marry according to their own wishes; Raj HC reiterated

The Court observed that in a deserving case, the Court can provide security to the couple, but cannot lend them the support they have sought. They have to learn to support each other and face the society. If any person misbehaves or manhandles them, the Courts and police authorities are there to come to their rescue, but they cannot claim security as a matter of course or right.

Read full report here…

Pecuniary Jurisdiction

Objection with regard to pecuniary jurisdiction shall be taken at the first instance at the earliest possible opportunity in accordance with S. 21 CPC

“no such objection was taken by the defendants at the earliest stage or not during the course of trial when it reached to its final stage. Now at the stage of final disposal, the application has been submitted which has been accepted by the learned court below by overlooking the mandatory provisions contained under Section 21 of the Code of Civil Procedure.” 

Read full report here…

Reverse Burden of Proof

Burden on the defence to prove the plea of insanity is only to the extent of establishing the same by preponderance of probabilities, need not be proved beyond all manner of doubt

Read full report here…

Telangana High Court

 Section 138 NI Act

A joint account holder cannot be prosecuted unless and until he/she is a signatory to subject cheque

“…Penal provisions should be construed strictly, but not in a routine/casual manner. The words used in Section 138 of N.I. Act  that “such person shall, be deemed to have committed an offence,, refers to a person who has drawn the cheque, but not any other person, except the contingencies mentioned under Section 141 of the N.I. Act.”

Read full report here…

Tripura High Court

Insurance Company

Compensation amount limited to amount claimed, Insurance Company’s liability reduced

S.G. Chattopadhyay, J. in the concerning matter to Parimal Das, held that the person claiming compensation should receive the amount not more than what he claimed. However, this doesn’t mean that the court is powerless to not award more compensation than the amount claimed.

Read full report here…

DNA Testing

Unless and until there is a challenge to the personal documents, direction cannot be given for DNA testing; Court dismisses appeal

Amarnath Goud, J., dealt with a petition wherein the case of the petitioner was that the respondent was not the son of the deceased Kshitish Ghosh and under the garb of certain Wills the respondent was selling the properties which were in dispute before the trial court. Petition further prayed to reconsider DNA testing approval which was dismissed earlier.

Read full report here…

Case BriefsHigh Courts

Calcutta High Court: 80-year-old widow approaches Court to seek direction towards her daughter-in-law to provide for her maintenance as she had taken compassionate appointment on the death of her son, Division Bench of Prakash Shrivastava, CJ and Rajarshi Bharadwaj, J., held that the daughter-in-law is bound by the undertaking by which she had obtained a compassionate appointment.

In the present case, a widow lady aged about 80 years challenged the order of Single Judge, whereby WP No. 3672(W) of 2019 was dismissed.

Further, the record reflected that the petition was filed by the appellant seeking the issuance of a direction to respondent 2 to provide financial assistance to the appellant for survival and medical treatment.

Reason for filing of the above petition

The Husband of the appellant had died long back, and her son was working as a primary school teacher but unfortunately, he also died. The daughter-in-law of the appellant had applied for compassionate appointment in the school and had also filed an affidavit stating that she will bear the responsibility of all the maintenance with the treatment of the appellant in future and forever.

Though the respondent 9 did not do as stated by her in an affidavit.

As no decision on the representation of the appellant was taken, the appellant approaches the Writ Court by filing the petition but the learned Single Judge by the order under challenge had dismissed the petition taking the view that the appellant’s son aged about 37 years is in a position to look after her.

Appellant’s counsel submitted that the only surviving son of the appellant was unemployed and was not in a position to look after the appellant.

High Court stated that once respondent 9 had obtained the compassionate appointment by giving the undertaking to maintain and extend medical assistance to the appellant, then she was bound by that.

Therefore, in view of the above present appeal was disposed of and the appellant was granted liberty to file an appropriate detailed representation before respondent 6 who will duly consider her grievance of the appellant and pass an appropriate order after giving an opportunity to the appellant and respondent 9. [Durgabala Mdandal v. State of W.B., 2022 SCC OnLine Cal 169, decided on 20-1-2022]

Advocates before the Court:

For the appellant:

Mr Rabindra Nath Mahata

Mr T.M. Saha

Ms Aninda Bhattacharya

For respondent 6:

Mr Ranjan Saha

For respondent 6:

Mr Sudip Sarkar

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, 2022 SCC OnLine HP 236, 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: Clearing the air over the applicability of a new or modified Compassionate Appointment Scheme that comes into force after the death of the employee, the bench of Hemant Gupta and V. Ramasubramanian*, JJ the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor such as the date of consideration of the application of the dependant.

Factual Background

The sister of the respondent died as an unmarried female Government servant on 8.12.2010.

The appointment on compassionate grounds in the State of Karnataka is governed by a set of Rules known as Karnataka Civil Services (Appointment on Compassionate grounds) Rules, 1996, issued in exercise of the powers conferred by Section 3(1) read with Section 8 of the Karnataka State Civil Services Act, 1978.

The Rules as they stood, on the date on which the sister of the respondent died in harness, did not include an unmarried brother, within the definition of the expression “dependant of a deceased Government servant” under Rule 2(1)(a) of the said Rules  vis¬a-vis  a deceased female unmarried Government servant.

It was only by way of way of a draft notification on 20.06.2012 that an unmarried brother of a deceased female unmarried Government servant was included within the definition. The final notification was issued on 11.07.2012.

While the competent authority rejected the respondent’s claim for compassionate appointment, the Karnataka State Administrative Tribunal allowed the application on the ground that the amendment   made to the Rules on 20.06.2012 would apply retrospectively covering the case of the respondent, though his sister died in harness on 8.12.2010. The said order was affirmed by the High Court.

Analysis

The Court analysed various judgments where the applicability of a new or modified Scheme that comes into force after the death of the employee was interpreted. It noticed that in cases where the benefit under the existing Scheme was taken away or substituted with a lesser benefit, the Supreme Court directed the application of the new Scheme. But in cases where the benefits under an existing Scheme were enlarged by a modified Scheme after the death of the employee, the Court applied only the Scheme that was in force on the date of death of the employee. This was fundamentally due to the fact that compassionate appointment was always considered to be an exception to the normal method of recruitment and perhaps looked down upon with lesser compassion for the individual and greater concern for the rule of law.

“Though there is a conflict as to whether the Scheme in force on the date of death of the employee would apply or the Scheme in force on the date of consideration of the application of appointment on compassionate grounds would apply, there is certainly no conflict about the underlying concern reflected in the above decisions. Wherever the modified Schemes diluted the existing benefits, this Court applied those benefits, but wherever the modified Scheme granted larger benefits, the old Scheme was made applicable.”

The Court noticed that the conflict of opinion in all the cases revolved around two dates, namely,

  1. date of death of the employee; and
  2. date of consideration of the application of the dependant.

Out of these two dates, only one, namely, the date of death alone is a fixed factor that does not change. The next date namely the date of consideration of the claim, is something that depends upon many variables such as the date of filing of application, the date of attaining of majority of the claimant and the date on which the file is put up to the competent authority.

“There is no principle of statutory interpretation which permits a decision on the applicability of a rule, to be based upon an indeterminate or variable factor.”

To put things not perspective, the Court explained by way of a hypothetical case where 2 Government servants die in harness on January 01, 2020.

“Let us assume that the dependants of these 2 deceased   Government servants make applications for appointment on 2 different dates say 29.05.2020 and 02.06.2020 and a modified Scheme comes into force on June 01, 2020. If the date of consideration of the claim is taken to be the criteria for determining whether the modified Scheme applies or not, it will lead to two different results, one in respect of the person who made the application before June 1, 2020 and another in respect of the person who applied after June 01, 2020.”

Hence, if two employees die on the same date and the dependants of those employees apply on two different dates, one before the modified Scheme comes into force and another thereafter, they will come in for differential treatment if the date of application and the date of consideration of the same are taken to be the deciding factor.

“A rule of interpretation which produces different results, depending upon what the individuals do or do not do, is inconceivable.”

It was, hence, held that the interpretation as to the applicability of a modified Scheme should depend only upon a determinate and fixed criteria such as the date of death and not an indeterminate and variable factor.

Ruling

Since, in the case at hand, the employee had died on 8.12.2010 and the amendment to the Rules was proposed by way of a draft notification on 20.06.2012, the Court noticed that merely because the application for appointment was taken up for consideration after the issue of the amendment, the respondent could not have sought the benefit of the amendment.

[Secretary to Govt. Department of Education (Primary) v. Bheemesh, 2021 SCC OnLine SC 1264, decided on 16.12.2021]

Counsels

For appellants: Advocate V. N. Raghupathy

For respondent: Senior Advocate Jayanth Muthraj

*Judgment by: Justice V. Ramasubramanian

Know Thy Judge | Justice V. Ramasubramanian

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: Resolving a date of birth related controversy, the Division Bench of Justice Umesh Chandra Srivastava and Vice Admiral Abhay Raghunath Karve, Member (A) stated,

“If we take date of birth recorded in educational certificate of the applicant as correct i.e. 05-07-1992 and date of birth in respect of his younger brother being 20-02-1992 as per service records, one can imagine as to how it could be possible that an elder brother comes to this world later than his younger brother.”

The applicant-son of the deceased had applied for a job in place of his deceased father’s post under ‘Employment Assistance under Indigent Circumstances Scheme’ and the same could not be processed due to mismatch of applicant’s name and date of birth in educational certificates and service records.

The application having certain defects was returned to applicant which he never re-submitted to respondents duly rectified. The raised by the respondent were that there was mismatch in name and date of birth recorded in educational certificates and Personal Occurrence Report maintained by the respondents as per declaration given by father of the applicant. On the basis of educational certificate and service record, it could easily be held that there was forgery with regard to date of birth as applicant being elder was born on 05-07-1992 (as per Educational Certificate) and his younger brother Deepak Kumar was born on 20-02-1992 i.e. prior to birth of his elder brother. The details of the applicant were as follows:

“Educational certificate: Name: Suneel Kumar, DOB: 05-07-1992

Service Records: Name:  Sunil, DOB: 27-03-1990”

The policy letter dated 27-01-2014 with regard to correction of name and change of date of birth in respect of children of Central Govt Employees states that if there is a typographical error while publishing Part II Order/Personal Occurrence Report, it can be corrected by approval of Officer-in-Charge. However, in the instant case names and dates of birth published through Personal Occurrence Report were entirely different to that of educational certificate. The Bench opined,

“The typographical error may be in date or month or year but complete date of birth cannot be totally different which creates a doubt in mind that there is other motive for change in complete date of birth.”

The Supreme Court in Bharat Coking Coal Ltd. v. Shyam Kishore Singh, (2020) 3 SCC 411, had held that, “while spelling in name can be corrected being a typographical error, date of birth as entered in service register of an employee cannot be changed at the fag end of the service even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right.”

The Tribunal observed that,

“It has become a trend that parents are getting recorded lesser age of their children in school certificates than the actual age to get undue advantage of age. When the children grow up, they try to get it corrected either by submitting applications or by approaching before the court. In this regard, we are of the opinion that correct date of birth is that which is declared by parents and notified by Part II Orders/Personal Occurrence Report published as per declaration made by parents.”

In view of the above, the Bench declined to interfere in the matter of correction in date of birth in respect of applicant. However, the Air Force authorities were directed to make correction of name in respect of applicant by changing it from “Sunil” to “Suneel Kumar”. Similarly, the Board of High School and Intermediate Education, U.P. was directed to make correction in date of birth in respect of applicant and change it to 1990.

Applicant is directed to submit corrected application to Air Force authorities for processing. Respondent authorities (Air Force) are directed to consider his application on merit. [Suneel Kumar v. Union of India, Original Application No. 135 of 2020, decided on 05-10-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Applicant: Ruby Singh, Advocate.

For the Respondent: Ashish Kumar Singh, Advocate

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

Tripura High Court: The Division Bench of Akil Kureshi, CJ. and S.G. Chattopadhyay, J., dismissed a petition which challenged an order passed by the Central Administrative Tribunal, Guwahati, dismissing the original application.

Mother of the petitioner was an employee of the Accountant General(Audit), Tripura, Agartala and she died while in service on 25-01-2013, leaving behind the petitioner, his elder brother and daughter. The petitioner had applied for appointment on compassionate ground which was rejected by the department on the ground that at the time of death the petitioner was already married. However, subsequently, the case of the petitioner was reopened and reconsidered. However, the request was again denied on the ground that the family of the deceased had one earning member.

The petitioner thereupon approached the Central Administrative Tribunal. His original application was rejected mainly on the ground that the purpose behind giving compassionate appointment was to provide urgent financial assistance to a family left in distress and in the present case, the Government servant having expired long back, such purpose would not be fulfilled. Thus, the current petition was filed.

The Court was of the view that in facts of the present case they are not inclined to entertain this petition as records say that petitioner was aged about 33 years at the time of the death of his mother and was already married and the family had one member who was holding a permanent post in the department of Accountant General which was not disclosed while seeking compassionate appointment.

The Court dismissed the petition holding that the petitioner had a duty to make a clean disclosure about the survivors left behind by the deceased.[Babu Dhanuk v. Union of India, 2021 SCC OnLine Tri 495, decided on 28-09-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Advocates:

For Petitioner(s): Mr Pradyot Maishan

For Respondent(s): Mr Biswanath Majumder, C.G.C.

Case BriefsSupreme Court

Supreme Court: The bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that retrospective seniority cannot be claimed from a date when an employee is not even borne in service.

Factual Background

  • The father of the respondent was working as a Home guard and after he died in harness, the respondent applied for compassionate appointment.
  • On 20.11.1985, order was issued by the Commandant, Bihar Home Guard forwarding the name of the respondent as one of the persons shortlisted for appointment on compassionate basis.
  • The appointment was conditional upon physical fitness certificate issued by the Civil Surgeon and the respondent was denied appointment as he was found deficient in the physical standards.
  • The recommended persons appeared in the Home Guard Headquarter as directed, but aggrieved, the respondent moved and obtained relief from the Patna High Court for appointment in Class IV post.
  • As the respondent was shortlisted for the post of Adhinayak Lipik, directed that the respondent be appointed to the post of ‘Adhinayak Lipik’ in the Homeguard Department, State of Bihar.
  • Following the above direction of the Supreme Court, the respondent was appointed on 27.2.1996.
  • Six years after joining service, an application was made on 10.9.2002 by the respondent claiming seniority from 1985 but the same was rejected by the authorities on the ground that the respondent was appointed in 1996 and not in 1985.

Analysis

Noticing that the respondent entered service only on 10.2.1996, the Court made clear that,

“The jurisprudence in the field of service law would advise us that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules, should not be allowed, as in so doing, others who had earlier entered service, will be impacted.”

Stating that the respondent was claiming seniority benefit for 10 years without working for a single day during that period, the Court held that precedence was being claimed over other regular employees who had entered service between 1985 to 1996.

It was, hence, held,

“In this situation, the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous.”

Important rulings

Shitla Prasad Shukla vs. State of UP, (1986)(Supp.) SCC 185

“The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the Court will not overturn the determination unless it would be unfair not to do so…”

Ganga Vishan Gujrati And Ors. Vs. State of Rajasthan, (2019) 16 SCC 28

“… retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade.”

[State of Bihar v. Arbind Jee, 2021 SCC OnLine SC 821, decided on 28.09.2021]

____________________________________________________

Counsels:

For appellant: Advocate Abhinav Mukerji

For respondent: Advocate Satvik Misra

*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Case BriefsSupreme Court

Supreme Court: In a case where a woman had sought compassionate appointment after her mother’s death in the year 2012, the bench of MR Shah* and Anirudhha Bose, JJ has held that the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment and since the word ‘divorced daughter’ has been added to Rule 3 of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules 1996 subsequently by Amendment, 2021, the respondent was not entitled to compassionate appointment.

[Note: Rule 2[1] and Rule 3[2] of the Rules 1996 do not include ‘divorced daughter’ as eligible for appointment on compassionate ground and even as ‘dependent’. The same was added to Rule 3 recently by Amendment, 2021.]

However, as straightforward as the case might look, the facts had a very interesting story to tell.

  • The mother of the original writ petitioner, who was employed with the Government of Karnataka as Second Division Assistant at Mandya District Treasury, died on 25.03.2012. The respondent, at that time, was a married daughter.
  • Immediately on the death of the deceased employee, the respondent initiated the divorced proceedings under Section 13B of the Hindu Marriage Act, 1955 on 12.09.2012 for decree of divorce by mutual consent.
  • By Judgment dated 20.03.2013, the Learned Principal Civil Judge, Mandya granted the decree of divorce by mutual consent.
  • Immediately on the very next day i.e. on 21.03.2013, the respondent, on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground.

Taking note of the aforementioned chronology of dates and events, the Court opined that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained. Otherwise, as a married daughter she was not entitled to the appointment on compassionate ground.

Interestingly, the High Court had directed the appointing authority to grant compassionate   appointment to the respondent after interpreting Rule 3 of the Rules, 1996 by putting “divorced daughter” in the same class of an unmarried or widowed daughter.

The said judgment was, however, erroneous as per the ruling in N.C. Santhosh v. State of Karnataka, (2020) 7 SCC 617, wherein it was held that

(i) the compassionate appointment is an exception to the general rule;

(ii) no aspirant has a right to compassionate appointment;

(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;

(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State’s policy and/or satisfaction of the eligibility criteria as per the policy;

(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.

Taking note of point number (v), the Court said that,

“… only ‘unmarried daughter’ and ‘widowed daughter’ who were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be ‘dependent’ of a deceased Government servant and that ‘an unmarried daughter’ and ‘widowed daughter’ only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant.”

Calling the High Court’s decision erroneous, the Court said that

“…even if it is assumed that the ‘divorced daughter’ may fall in the same class of ‘unmarried daughter’ and ‘widowed daughter’ in that case also the date on which the deceased employee died, the respondent herein was not the ‘divorced daughter’ as she obtained  the divorce by mutual consent subsequent to the death of the deceased employee.”

Hence, the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee.

[Director of Treasuries in Karnataka v. V. Somyashree, 2021 SCC OnLine SC 704, decided on 13.09.2021]

[1] 2.   Definitions:­

(1)   In   these   rules, unless the context otherwise requires:­

(a) “Dependent   of   a   deceased   Government servant” means­

(i) in   the   case   of   deceased   male   Government servant, his widow, son, (unmarried daughter and widowed daughter) who were dependent upon him; and were living with him; and

(ii) in the case of a deceased female Government servant,   her   widower,   son,   (unmarried daughter   and   widowed   daughter)   who   were dependent upon her and were living with her;

(iii) ‘family’ in relation to a deceased Government servant means his or her spouse and their son,   (unmarried   daughter   and   widowed daughter) who were living with him.

(2)     Words   and   expressions   used   but   not defined shall have the same meaning assigned to   them   in   the   Karnataka   Civil   Services (General Recruitment) Rules, 1977.

[2] Rule 3(2)(ii):­

(ii)   in the case of the deceased female Government servant;

(a) a son;

(b) an   unmarried   daughter,   if   the   son   is   not eligible or for any valid reason he is not willing to accept the appointment;

(c) the widower, if the son and daughter are not eligible or for any valid reason they are not willing to accept the appointment.

(d) a widowed daughter, if the widower, son and unmarried daughter are not eligible or for any valid reason they are not willing to accept the appointment.

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Appearances before the Court by:

For State: Advocate V.N. Raghupathy

For Respondent: Advocate Mohd. Irshad Hanif

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal: Mohd. Jamshed, Member (A), held that compassionate appointment cannot be equated with family pension. Slamming the respondents for their insensitive and inconsiderate attitude towards a person with 82% permanent disability, the Bench expressed,

“This correspondence between the 2nd and 3rd respondent indicates lack of any sensitivity and concern towards a physically handicapped person…the net result is that a physically handicapped person, whose parents have expired is being denied the family pension which is due to him as a matter of right in terms of extant rules and regulations.”

The father of the instant applicant Late Mr Hari Chand, used to serve in Horticulture Department, Central Public Works Department (CPWD) under Ministry of Urban Development as a Senior Mali and superannuated from service w.e.f. 31-07-2011. The applicant was aggrieved by the refusal of the respondents to include his name in Pension Payment Order (PPO) as a disabled son and for sanction of family pension in his favour.

The applicant was examined in Ram Manohar Lohia (RML) Hospital, Delhi by the Medical Board and declared as a case of ‘post-polio residual paralysis of both lower limbs’. His permanent physical impairment was declared as 82% and it was mentioned that he could perform desk jobs only. The applicant asserted that he was using crutches in both hands for walking and it was not possible for him to move without the help of an accompanying person. It was also submitted that he was unable to sit in a chair and could not use public transport/toilet and hence, he was not able to undertake any job in the office. Hence, he insisted that family pension be released to him.

The applicant had relied upon the OM dated 01-07-2013 issued by Ministry of Personnel, Public Grievances and Pension, Department of Pension and 4 OA No. 695/2019 Pensioner Welfare wherein it is clearly indicated that on acceptance of such request from permanently disabled children, the Head of Office will immediately issue order for grant of family pension. He had also relied upon the OM dated 27-01-2016 which says that the grant of family pension to disabled children is in no way equated to compassionate appointment.

Observing that the respondent had at one point found the reasons given by the applicant for his inability to undertake the desk job acceptable and, had recommended his case for grant of family pension yet the applicant was denied grant of pension, the Bench stated,

“This is indeed ironical as the case of family pension has already been recommended by the 2nd respondent.”

Noticing that the correspondence between the respondent 2 and 3 indicated lack of any sensitivity and concern towards a physically handicapped person, and that the respondents had based their objections only on the line mentioned in the medical certificate which says ‘he can perform only desk job’, the Bench opined that the respondents had denied the family pension to the applicant on account of sheer apathy, inaction and indecision.

“Equating grant of family pension to compassionate appointment is in itself fundamentally wrong…the contention of the respondents that the applicant had once been asked to apply for compassionate appointment, which he has refused and, therefore, he is not eligible for family pension is not supported by rules and is purely arbitrary.”

In the light of the above, the Bench held that the kind of apathy being shown towards a physically handicapped person by depriving him of his right and to get much-needed family pension for his survival for last more than 5 years, without any basis to say the least was injustice. Accordingly, the respondents were directed to grant family pension to the applicant within a period of three months without any arrears. However, in case of non-compliance by the respondent within three months further directions were made making them liable to pay interest at 9% for any subsequent delayed payment. [Sh. Mahesh Kumar Sharma v. Union of India, O.A. No.695/2019, decided on 24-08-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Applicant: Advocate: Mr. B.K. Berera

For the Respondents: Advocate: Mr. Hitesh Kumar Bagri

Case BriefsHigh Courts

Karnataka High Court: A Division Bench of B.V Nagarathna and Hanchate Sanjeev Kumar, JJ. allowed the petition and remarked:

“no child is born in this world without a father and a mother. A child has no role to play in his/her birth.”

The facts are such that the petitioner/appellant being a son of his deceased was denied compassionate appointment on the ground that he is born out of second marriage of his father during subsistence of his first marriage. The decision is in line with a circular dated 23-09-2011 Clause 2 of Karnataka Electricity Board Employees’ Recruitment  (Appointment on Compassionate Grounds) Regulations,1997 (i.e.  “Regulations”).  Being aggrieved, the petitioner assailed the same in the writ petition and then by a review petition which upheld the decision. Being aggrieved by the dismissal of the writ petition as well as the review petition instant appeal was preferred.

Observations

The Court observed that the Regulations have been made by the rule making authority being conscious of the fact that an adopted son or daughter has the same rights in law as a son or daughter born to a deceased Board employee. But, under the Regulations, adopted children are expressly excluded from the scope of the appointment on compassionate basis, which is in the realm of policy.

The Court observed the expression ‘son’ and ‘daughter’ so as to include even on illegitimate son and daughter by various judgments of the Supreme Court for the purpose of consideration for compassionate appointment, and Regulation 2(1)(b) cannot restrict the expression ‘family’ in relation to a deceased Board employee to mean only his or her legally wedded spouse and their sons and daughters who were jointly living with him. Such a definition would run counter to Section 16 of the Act, which is Parliamentary legislation and also Articles 14, 15(1) and 16(1) as well as the Directive Principles of State Policy concerning children which would include all children, whether legitimate or illegitimate, to have equal opportunities. When the Parliament under Section 16 of the Act, has treated legitimate and illegitimate children on par and given them equal status, Regulation 2(1)(b) cannot restrict the expression family in relation to deceased employee to mean only his or her legally wedded spouse and children jointly living with him.

The Court relied on judgment Union of India v. V. R. Tripathi [(2019) 14 SCC 646] wherein it was held

“We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination. The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries — legitimate children. 

The High Court has proceeded on the basis that the recognition of legitimacy in Section 16 is restricted only to the property of the deceased and for no other purpose. The High Court has missed the principle that Section 16(1) treats a child born from a marriage which is null and void as legitimate. Section 16(3), however, restricts the right of the child in respect of property only to the property of the parents. Section 16(3), however, does not in any manner affect the principle declared in sub-section (1) of Section 16 in regard to the legitimacy of the child.”

The Court also observed that with regard to the right of a child born out of a void marriage irrespective of the personal law under which the marriage might have taken place to seek appointment on compassionate basis. No doubt, validity of a marriage is dependent upon the personal law applicable to the parties but there is also Special Marriage Act, 1954, which is not relatable to any personal law. It is a species of a uniform civil law applicable to marriages of persons irrespective of the religion they may belong to. Even under the said Act, there are the concepts of void and voidable marriages. Hence, it is necessary to protect the rights of children born from such void or voidable marriage to seek compassionate appointments de hors the personal law applicable to the parents of such a child.

The Court observed as per Section 26 of the Special Marriage Act, 1954 deals with marriage between any two persons solemnized under the said Act which is a void and voidable marriage (Sections 24 and 25 of the said Act respectively) but conferring legitimacy to children born out of such marriages. It is noted that the said provision also has an over-riding effect and a child born out of a void or voidable marriage is deemed to be a legitimate child.

The Court thus observed for the limited purpose of this case, we find that children born out of void and voidable marriages under other personal laws, where there is no provision for conferment of legitimacy, must also have equal protection of the law by treating them on par with children born out of void and voidable marriages under the Hindu Marriage Act or the Special Marriage Act, 1954, insofar as the appointment on compassionate basis is concerned, as interpreted by us, under the Regulations under consideration and in light of the judgment of the Supreme Court in V.R.Tripathi.

The Court thus directed to “consider the application made by the appellant herein in accordance with the observations made above and in accordance with law.”

[K Santhosha v. Karnataka Power Transmission, 2021 SCC OnLine Kar 12989, decided on 24-06-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Appearances

For Appellants-Mr Subramanya Bhat

For Respondents- Mr Ravindra Reddy

Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J., dismissed a petition which was filed aggrieved by the denial of compassionate appointment by communication dated 07-01-2020, as he had fathered a third child after the cut-off date i.e. 01-06-2002.

The petitioner’s father was working with the respondent – department and had died in harness on 29-06-2019. In the month of July, 2019 the petitioner had applied for an appointment on the compassionate ground under Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 (‘Rules of 1996’).

His request for a compassionate appointment had been turned down by the respondents as the petitioner had more than two children after the cut off date (01-06-2002).

Mr Anil Vyas, counsel for the petitioner, argued that the respondents had erred in rejecting petitioner’s candidature, as the ineligibility based on number of children has not been provided in the Rules of 1996. he further added that the Rules of 1996 have an overriding effect on all other rules and thus, disqualification on account of birth of third child after the cut off date cannot be an impediment in petitioner’s way of getting an appointment under the Rules of 1996. It was further argued by Mr Vyas that the petitioner had given one of his children in adoption on 04-12-2019 and thus, the disqualification, if any, does not continue anymore.

The Court slashed down the second contention of petitioner’s child been given in adoption stating that the same had been done on 04-12-2019, concededly after the death of deceased – employee and that too after submitting an application under the Rules of 1996 and this was nothing but an attempt to overcome the disqualification/ineligibility, which was attached with the petitioner. The Court further opined that petitioner having been given one child in adoption does not obliterate or remove the disqualification. The disqualification is based on the event or incident of giving birth to a third child. It is not based on number of living/existing children on the date of submitting application.

The Court perused Rule 7 of the Rules of 1996 and firmly held that a dependent has to fulfil general conditions prescribed in the relevant service rules to be eligible for appointment and since the petitioner has given birth to a third child after the cut off date, he fails to satisfy general conditions of the Rules of 2014.

The Court dismissed the petition holding that no illegality had been committed by the respondents rejecting the petitioner’s candidature for appointment on the compassionate ground under the Rules of 1996.[Shankar Lal Meena v. State of Rajasthan,  2021 SCC OnLine Raj 583, decided on 20-07-2021]

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: M Nagaprasanna, J., allowed the petition and quashed the impugned endorsement.

The petitioners in the instant writ petition challenge the endorsement dated 23-12-2020 which declined to grant an appointment on compassionate grounds to the 1st petitioner and have sought for consequential direction by issuance of a writ in the nature of mandamus directing the respondents to consider the case of the 1st petitioner for an appointment on compassionate grounds qua his qualification.

Counsel for the petitioners Mr Ashwini O. submitted that the appointment on compassionate grounds was denied on the basis of a Rule that came about on 26-09-2017 which was long after the death of the breadwinner of the family and the application being given by the petitioners for appointment on compassionate grounds.

Counsel for the respondents Mrs M C Nagashree submitted that there is no right to the applicants to seek an appointment on compassionate grounds as it can be only in terms of the policy or the Rules as the case would be. Since there was no vacancy existing in the post of Second Division Assistant in any of the Aided Institutions, the appointment of the 1st petitioner was declined to be considered for the present.

The Court observed that consideration of applications for appointment on compassionate grounds in the State is regulated under the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996. In terms of the afore-extracted Rules appointment shall be confined to any post in Group-C or Group-D depending on the qualification specified for the post and appointment once made under these Rules shall be final.

The Court relied on judgment Canara Bank v. M .Mahesh Kumar, (2015) 7 SCC 412  wherein it was observed:

  1. ….it is apparent that the judgment specifically states that claim of compassionate appointment under a scheme of a particular year cannot be decided in the light of the subsequent scheme that came into force much after the claim. That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.

“….That being so, it needs little emphasis that the scheme or the policy, as the case may be, is binding both on the employer and the employee. Being an exception, the scheme has to be strictly construed and confined only to the purpose it seeks to achieve.”

The Court further relied on Lalitha Laxman Kundargi v. Managing Director, 1999 SCC OnLine Kar 329  wherein it was observed:

“…..9. Therefore, the proper and equitable way in which Rule 9 of the new scheme dated 3.4.1997 can be interpreted is thus; If the application filed by the dependent family member under the old scheme is pending on the date when the new scheme came into force, on account of any negligence or want of compliance by such applicant, it should be disposed of under the new scheme. If the application was kept pending by the Corporation for no fault of the applicant, but due to delay in consideration by the Corporation and if the old scheme is more beneficial to the applicant, the applicant is entitled to require the employer to consider such application, in terms of the old scheme which was in force on the date of death and date of application.”

The Court observed that in the light of the law declared so far by Courts, the application given by the petitioners on 11-09-2015 had to be considered qua the Rules obtaining at that point in time and not the one that was subsequently notified and now made use of to deny appointment to the 1st petitioner. Therefore, on both the counts, one being the change in the Rules and non-existence of vacancies, on which the impugned endorsement is issued is untenable and is consequently rendered unsustainable. Compassionate Appointment Rules also depict grant of appointment to the applicant on compassionate grounds in Group-C or Group-D owing to the qualification possessed.

The Court further observed that the delay of 6 years is not attributable to the petitioners as the application for compassionate appointment was given within two months after the date of death of the father. Keeping the application pending for years or months will defeat the very object of framing the Rule for grant of appointment on compassionate grounds. Therefore, the need for immediate consideration of such representations/applications for appointment on compassionate grounds is paramount.

The Court observed that if giving of an application within one year is held to be mandatory and binding on the applicant in terms of Rule 5, so would be sub-Rule (2) of Rule 6 upon the State and its instrumentalities. Though the Rule employs the words ‘as far as possible’ it is preceded by the word “shall”. Looking at the mandatory duty cast upon the applicant to file an application within one year from the date of death of the bread winner, the same duty is required to be mandatorily followed by the State in terms of sub-rule (2) of Rule-6 in the wake of the object of framing the rule and the duty that enjoins such object. Any unreasoned or unjustifiable delay on the part of the Authority competent to consider would make such Authority personally responsible to pay damages to such applicant by way of wages that the applicant would be entitled to, if an appointment had been considered and granted.

The Court thus held “Mandamus is issued to the respondents to reconsider the case of the 1st petitioner for appointment on compassionate grounds in terms of sub-rule (4) of Rule 4 of the Rules”[Hruthik N. v. Deputy Director of Public Instructions, 2021 SCC OnLine Kar 12910, decided on 12-07-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where a woman had sought compassionate appointment for her son 10 years after her husband had gone missing, the bench of L. Nageswara Rao and S. Ravindra Bhat, JJ refused to grant the said relief and held,

“As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondent’s son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.”

Background

The respondent’s husband was an Operator, Helper Category (Category II) at Gidi Washery. He had gone missing in the year 2002. A charge-sheet was issued by Central Coalfields Limited to the Respondent’s husband for desertion of duty since 01.10.2002 and an inquiry was conducted in which the Respondent participated on behalf of her husband. On the basis of Inquiry Officer’s report, the Respondent’s husband’s services were terminated with effect from 21.09.2004.

The Respondent filed a suit in the Court of the Additional Munsif, Hazaribagh seeking a declaration of civil death of her missing husband. The said suit was decreed with effect from the date of filing of the suit i.e. 23.12.2009 by a judgment dated 13.07.2012.

The Respondent then made a representation on 17.01.2013 seeking compassionate appointment for her son which was rejected on 03.05.2013 on the ground that the Respondent’s husband was already dismissed from service and therefore, the request for compassionate appointment could not be entertained.

Jharkhand High Court’s decision

The High Court was of the opinion that the reasons given by the employer for denying compassionate appointment to the Respondent’s son were not justified. There was no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement.

Supreme Court’s ruling

Explaining the object behind grant of compassionate appointment, the Court explained,

“The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family[1].”

However, compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future.

The object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a significant lapse of time and after the crisis is over.

In the present case, it cannot be said that there was any financial crisis created immediately after Respondent’s husband went missing in view of the employment of the Respondent. Though the Court agreed with the High Court’s views that the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, it was of the opinion that the Respondent’s son cannot be given compassionate appointment at this point of time.

“The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondent’s husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondent’s son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.”

[Central Coalfields Limited v. Parden Oraon, 2021 SCC OnLine SC 299, decided on 09.04.2021]

[1] Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138

*Judgment by: Justice L. Nageswara Rao

Know Thy Judge| Justice L. Nageswara Rao