Gujarat High Court
Case BriefsHigh Courts

   

Gujarat High Court: Biren Vaishnav, J. allowed a petition reiterating that a Government employee is entitled to avail the benefits of medical facilities without any fetters, and that their claim for reimbursement should not be denied by the State mechanically.

The petitioner prayed that he had undergone Angioplasty, and was entitled to full reimbursement of Rs.,1,76,757/-.

Counsel for the petitioner drew the attention of the Court to a representation made by the petitioner on 23-01-2019 to the Regional Information Officer(Respondent 3). The Petitioner had incurred an expense of Rs.,1,76,757 for her medical treatment. She claimed that part reimbursement worth Rs.62,100 for her surgery at Rajasthan Hospital was misconceived. It was submitted that the petitioner should be reimbursed the remaining amount of Rs.1,14,656/-.

Assistant Government Pleader for the respondents vehemently opposed the stand of the petitioner for reimbursement of the balance amount of Rs.1,14,656/- .

The Court relied on the Coordinate Bench judgment of this Court in the case of Chanrakant Kantilal Dave v. State of Gujarat, Special Civil Application No.2736 of 2013, decided on 18-09-2018 which had similar set of facts and its decision was based on the judgment principles of Shiva Kant Jha v. Union of India, (2018) 16 SCC 187. The Court reiterated:

“The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds.”

Keeping in mind the abovementioned case laws and principles the petition was allowed with a direction to respondents to reimburse the balance amount of Rs.1,14,656/- to the petitioner together with the interest @ 9% p.a. from the date of filing of petition till its realization within a period of ten weeks.

[Gulamkadar Kasambhai Shaikh v. State of Gujarat, R/Special Civil Application No. 6345 of 2019, decided on 18-07-2022]


Advocates who appeared in this case :

Mr Nayan D Parekh, Advocate, for the Petitioner 1;

Mr Utkarsh Sharma, AGP, Advocate, for the Respondent 1,2,3.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Orissa High Court: S.K Panigrahi, J. dismissed the petition and remarked “no application for alteration of date of birth after five years from the joining date will be entertained.”

The instant writ petition was filed for correction of the date of birth from 01-02-1963 to 01-02-1965 which was wrongly recorded in the petitioner’s service book entry. The petitioner is currently employed as a peon in the Dinapadma High School, Baghamund, in the district of Bolangir and has made representations that his date of birth has been wrongly recorded. 

Counsel for the petitioner submitted that if the date of birth of the petitioner is not subjected to correction within the optimal amount of time, then the petitioner will face the problem of premature retirement and irreparable loss & injury.

A notification (No.2102 – 2R/1-27/94-Gen) issued by the Government of Orissa dated 30th January, states

“(i) No alternation of the date of birth once recorded in the Service Book/Service Roll of an employee, shall be made excepting in case of clerical error without prior approval of the State Government. An application for effecting a change in the date of birth shall be summarily rejected if a) filed after five years of entry into Government service, or b) the change would lower the applicant’s age to an extent that he/she would have been ineligible to appear in any of the academic or recruitment examination for appointment to any service or post under the Government.”

 The Court relied on the Supreme Court judgment named Secretary and Commissioner, Home Department v. R. Kirubakaran, AIR 1993 SC 2647 wherein it was observed

“…….As such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the court or the tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants to raise such a dispute without explaining as to why this question was not raised earlier…….”

 “An application for correction of the date of birth by a public servant cannot be entertained at the fag end of his service. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process.

the court must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within time fixed by any rule or order. The onus is on the applicant to prove about the wrong recording of his date of birth in his service book.”

The Court thus noted that the application is time-barred and was not filed within five years from the date of joining. In the instant case, according to the notification it was made clear that no alteration of the entry should be allowed after five years.

 The Court held “petitioner’s claim is time-barred and hence, cannot be entertained.”[Ugrasen Sahu v. State of Odisha, 2022 SCC OnLine Ori 1468, decided on 27-05-2022]


 Appearances

For Petitioners: Ms D.J. Sahu

For Opp. Parties: Mr Biswajit Mohanty


Arunima Bose, Editorial Assistant has reported this brief. 

Hot Off The PressNews

NHRC ensures payment of Rs. 13 lakh relief in the case of the death of a Tamil Nadu Government woman employee after slipping into a septic tank near her office; action against the guilty officials and construction of toilets in all the Agriculture Extension Centres

The intervention of the National Human Rights Commission, India resulted in the payment of monetary relief of Rs. 13 lakh to the next of kin of a Tamil Nadu Government lady Warehouse Manager, who died on 07th December, 2020 after falling into a septic tank near an under construction building to answer call of nature as there was no toilet in her office. She was working in the Kancheepuram Agriculture Development office. The relief amount includes the service benefits of the victim and Rs. 10 lakh from Chief Minister’s Relief Fund.

The State government has informed the Commission that it has also taken action against the guilty officers besides ordering setting up of toilet facilities on a war footing at all the Agriculture Extension Centres (IAECS)/Sub Agriculture Extension Centres in various parts of the State. It is also considering appointment of the victim’s elder sister on compassionate ground.

The Commission has asked the Chief Secretary, Government of Tamil Nadu to submit the status report on the construction of restrooms in all the Agriculture Extension Centres (IAECS)/Sub Agriculture Extension Centres within 8 weeks.

The Commission had taken cognizance of the fatal incident on the basis of a complaint.


National Human Rights Commission

[Press Release dt. 25-3-2022]

Case BriefsSupreme Court

Supreme Court: Finding the Bombay High Court’s judgment directing the State to extend the pensionary benefits to the employees of Water and Land Management Institute (WALMI) unsustainable, both in law and on facts, the bench of MR Shah* and BV Nagarathna, JJ held that the employees of WALMI, which is an independent autonomous body registered under the Societies Act are not entitled to the pensionary benefits and that,

“… the employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on par with the Government employees.”

Holding that the State Government and the Autonomous Board/Body cannot be put on par, the Court explained that,

“Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions.”

Cautioning the Courts to refrain from interfering with the policy decision, which might have a cascading effect and having financial implications, the Court observed that whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the Court cannot interfere lightly. Granting of certain benefits may result in a cascading effect having adverse financial consequences.

In the case at hand, WALMI being an autonomous body, registered under the Societies Registration Act, the employees of WALMI are governed by their own Service Rules and conditions, which specifically do not provide for any pensionary benefits; the Governing Council of WALMI has adopted the Maharashtra Civil Services Rules except the Pension Rules.

The State Government has taken such a policy decision in the year 2005 not to extend the pensionary benefits applicable to the State Government employees to the employees of the aided institutes, boards, corporations etc.; and the proposal of the then Director of WALMI to extend the pensionary benefits to the employees of WALMI has been specifically turned down by the State Government.

In such facts and circumstances, the Supreme Court held that the High Court was not justified in directing the State to extend the pensionary benefits to the employees of WALMI, which is an independent autonomous entity.

The Court was also not pleased with High Court’s observation that as the salary and allowances payable to the employees of WALMI are being paid out of the Consolidated Fund of the State and/or that the WALMI is getting grant from the Government are all irrelevant considerations, so far as extending the pensionary benefits to its employees is concerned. It noticed that WALMI has to run its administration from its own financial resources. WALMI has no financial powers of imposing any tax like a State and/or the Central Government and WALMI has to depend upon the grants to be made by the State Government.

Observing that the grant of pensionary benefits is not a one-time payment but a recurring monthly expenditure and there is a continuous liability in future towards the pensionary benefits. The Court said that merely because at one point of time, WALMI might have certain funds does not mean that for all times to come, it can bear such burden of paying pension to all its employees. In any case, it is ultimately for the State Government and the Society (WALMI) to take their own policy decision whether to extend the pensionary benefits to its employees or not. Hence, the interference by the Judiciary in such a policy decision having financial implications and/or having a cascading effect is not at all warranted and justified.

[State of Maharashtra v. Bhagwan, 2022 SCC OnLine SC 25, decided on 10.01.2022]


*Judgment by: Justice MR Shah


Counsels

For Appellants: SG Tushar Mehta and AOR Sachin Patil

For respondents: Advocate J.N. Singh

Case BriefsSupreme Court

Supreme Court: In a case where a Government employee had sought change of date of birth in service records from 04.01.1960 to 24.01.1961, 24 years after he had joined the service, the bench of MR Shah* and AS Bopanna, JJ has held that the said employee was not entitled to any relief or change of date of birth on the ground of delay and laches as the request for change of date of birth was made after lapse of 24 years since he joined the service.

Law on change of date of birth summarized:

(i) application for change of date of birth can only be as per the relevant provisions/regulations applicable;

(ii) even if there is cogent evidence, the same cannot be claimed as a matter of right;

(iii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation.

Important Rulings

Home Deptt. v. R.Kirubakaran, 1994 Supp (1) SCC 155

“An application for correction of the date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion for ever…”

Read more…

State of M.P. v. Premlal Shrivas, (2011) 9 SCC 664

“8. It needs to be emphasised that in matters involving correction of date of birth of a government   servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has 13 good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights.”

Read more… 

Life Insurance Corporation of India v. R.Basavaraju, (2016) 15 SCC 781

“5. The law with regard to correction of date of birth has been time and again discussed by this Court and held that once the date of birth is entered in the service record, as per the educational certificates and accepted by the employee, the same cannot be changed. Not only that, this Court has also held that a claim for change in date of birth cannot be entertained at the fag end of retirement”

Read more… 

Bharat Coking Coal Limited v. Shyam Kishore Singh, (2020) 3 SCC 411

“9. … the request for change of the date of birth in the service records at the fag end of service is not sustainable.

10. … 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.”

Read more… 

[Karnataka Rural Infrastructure Development Ltd. v. T.P. Nataraja, 2021 SCC OnLine SC 767, decided on 21.09.2021]


*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court: The bench of Justice Hemant Gupta* and AS Bopanna, JJ has held that Kashmiri migrants, who were once Government employees, cannot retain Government accommodation for indefinite period on the ground that “they would return to the Valley when the situation will improve”.

The Court was deciding the case of where some Kashmiri migrants had occupied Government accommodation in Delhi and in National Capital Region on the strength of an order passed by the Delhi High Court in a judgment reported as Union of India v. Vijay Mam, 2012 SCC OnLine Del 3218, pursuant to which a rehabilitation scheme was framed by the Central Government on 28.3.2017 as modified on 19.5.2017.

The Court, however, noticed that since the Office Memorandum issued on 28.3.2017 was in terms of the order of the High Court of Delhi, which has not been approved by the Supreme Court vide order dated 5.8.2021, the entire basis of issuance of Office Memorandum falls flat as the very foundation of such Scheme stands knocked down.

It was held that the Office Memorandum allowing government accommodation to the retired Government employees who are Kashmiri Migrants did not meet the touchstone of Article 14 of the Constitution of India.

“The Government houses/flats are meant for serving Government employees. Post retirement, the government employees including Kashmiri Migrants are granted pensionary benefits including monthly pension. The classification made in favour of Government employees who were Kashmiri Migrants stands on the same footing as that of other Government employees or public figures. There cannot be any justification on the basis of social or economic criteria to allow the Kashmiri Migrants to stay in Government accommodation for indefinite long period.”

Noticing that the compassion shown to Kashmiri Migrants has to be balanced with the expectations of the serving officers to discharge their duties effectively, bench said that the applicants are occupying the government accommodation at the cost of other Government servants who are waiting in queue for allotment of a government accommodation to discharge their official duties. The Government accommodation is meant for serving officers and cannot be taken as a recourse to stay in Government accommodation for the life time of the Government servants or his/her spouse.

“To say that they would return to the Valley when the situation will improve is an open-ended statement capable of being interpreted in different ways. The satisfaction of improvement of situation would be widely different by the erstwhile Government employees and the State. But in no case it can be countenanced that the former Government employee, may be a Kashmiri Migrant, is entitled to stay in a government accommodation for an indefinite period. Thus, we are unable to uphold the Office Memorandum and strike it down as being totally arbitrary and discriminatory.”

The Court went on to explain that in Para 2(ii) of the Scheme, Kashmiri Pandits were to be accommodated in Delhi for first five years starting from the date of their retirement and thereafter be shifted to National Capital Region. Hence, it would be reasonable if

  • Kashmiri Migrants are allowed government accommodation for a period of three years from the date of retirement so as to make alternative arrangements within such period.
  • If an alternative accommodation is not available for them at their instance, they are at liberty to move to the transit accommodation or to avail cash amount in lieu of transit accommodation.

“Thus, a government employee who is a Kashmiri Migrant would not be entitled to retain Government  accommodation for a period exceeding three years, may be in Delhi or in the National Capital Region or for that matter anywhere in the country.”

The Court further held that the three-years period can also be considered as cooling off period for the officers who were in active intelligence work so that they can resume normal life but the excuse of once working for intelligence agency is not a valid ground to occupy the Government accommodation for indefinite period.

[Omkar Nath Dhar v. Union of India, MISCELLANEOUS APPLICATION NO. 1468 OF 2021, decided on 07.10.2021]

____________________________________________________________________

Counsels:

For applicants: Senior Advocate Bimal Roy Jad

For UOI: Madhavi Divan, Additional Solicitor General


*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsSupreme Court

Supreme Court: The Division Bench of Hemant Gupta and A.S. Bopanna, JJ., expressed that

Government accommodation is only meant for in-service officers and not for the retirees or those who have demitted office.

The right to shelter does not mean right to government accommodation.

Challenge 

Decision of the Punjab and Haryana High Court has been challenged in the present matter.

Background

Single Bench allowed the petition of a Kashmiri migrant, respondent – Onkar Nath Dhar who shifted to Jammu in the year 1989 or so. He was transferred to the office of the Intelligence Bureau in Delhi. Later, he was transferred to Faridabad, wherein he was allotted a government accommodation. Respondent attained the age of superannuation in the year 2006.

Respondent on making a representation to the appellant was allowed to retain the government accommodation till the circumstances prevailing in Jammu and Kashmir improve and Government makes it possible for him to return to his native place.

An eviction order was passed against Dhar under Public Premises (Eviction of Unauthorised Occupant) Act, 1971, but the same was stayed by the Additional District Judge, Delhi.

Later, the Single Judge Bench relied upon an order passed by this Court in J.L. Koul v. State of J&K, (2010) 1 SCC 371, wherein it was held that it was not possible for Dhar to return to his own State and that due to which eviction order shall be kept in abeyance. The same was affirmed by the Division Bench of Punjab and Haryana High Court.

Analysis, Law and Decision

Supreme Court opined that the High Court Orders were unsustainable.

In view of the plethora of Judgments referred by the Court, Bench affirmed that

Government accommodation could not have been allotted to a person who had demitted office. No exception was carved out even in respect of the persons who held Constitutional posts at one point of time.

Therefore, decision of the Punjab and Haryana High Court was erroneous on the basis of compassion showed to displaced persons on account of terrorist activities in the State.

Further, reasoning its decision, Bench stated that compassion could be shown for accommodating the displaced persons for one or two months but to allow them to retain the Government accommodation already allotted or to allot an alternative accommodation that too with a nominal licence fee defeats the very purpose of the Government accommodation which is meant for serving officers.

If a retired government employee have no residence, they have an option to avail transit accommodation or to receive cash compensation in the place of transit accommodation. 

Right to Shelter?

Elaborating more, the Court stated that the right of shelter is taken care of when alternative Transit accommodation is made available to the migrant to meet out the emergent situation.

Government accommodation is meant for serving officers and officials and not to the retirees as benevolence and distribution of largesse.

Policy of Centre to provide accommodation? | Terrorism in J&K

Answering in negative, Court stated that Centre or State do not have any policy to provide the accommodation to displaced persons on account of terrorism in the State of Jammu and Kashmir.

Adding to the above discussion, Bench held that there is no indefeasible right in any citizen for allotment of government accommodation on a nominal licence fee.

In view of the decision of J.L. Koul  v. State of J&K, (2010) 1 SCC 371  the Kashmiri migrants are entitled to transit accommodation and if transit accommodation could not be provided then money for residence and expenses.

Dhar and such like persons are not from the poorest section of the migrants but have worked in the higher echelons of the bureaucracy. To say that they are enforcing their right to shelter only till such time the conditions are conducive for their safe return is wholly illusory.

Concluding the matter, Supreme Court found that the orders of the High Courts were wholly arbitrary and irrational, therefore the present appeal was allowed.

Though, the Court directed respondent-Dhar to hand over vacant physical possession of the premises on or before 31-10-2021, i.e., after 15 years of his attaining the age of superannuation. [Union of India v. Onkar Nath Dhar, 2021 SCC OnLine SC 574, decided on 5-08-2021]

Jharkhand High Court
Case BriefsCOVID 19High Courts

Jharkhand High Court: Rongon Mukhopadhyay J., rejected anticipatory bail to the ground in light of facts and submissions in the instant case.

The facts of the case are such that the petitioner who is a government employee wrote derogatory remarks in a Facebook post regarding a woman of Malaysian origin which was further circulated on Whatsapp prompting comments targeting a single community. The petitioner apprehends his arrest in connection with the instant case and seeks anticipatory bail before the Court.

The petitioner was represented by Advocate Kumar Amit and the respondent was represented by A.P.P Ruby Pandey.

Court observed that the man being a government employee took a screenshot of his Facebook post and he himself circulated that on Whatsapp group inciting derogatory remarks against a particular community. The allegations leveled are serious in nature and the fact that it was done by a government employee makes the entire incident all the more grave.

Hence the court held that in light of the aforesaid facts and observations petitioner is not liable to be granted anticipatory bail.

In view of the above, the bail was rejected and the petition disposed of.[Shesh Nah Yadav v. State of Jharkhand, 2020 SCC OnLine Jhar 790, decided on 09-09-2020]


Arunima Bose, Editorial Assistant has put this story together

Case BriefsHigh Courts

Allahabad High Court: A Full Bench of Pankaj Mithal, Suneet Kumar and Rohit Ranjan Agarwal, JJ. dismissed a batch of writ petitions seeking entitlement to receive death-cum-retirement gratuity while judicial proceedings were pending.

The petitioners were government employees (Lekhpal/Police Officials), who had retired on attaining the age of superannuation, and by the impugned orders, their full pension and gratuity had been withheld due to pending judicial proceedings against them. The petitioners had sought quashing of the impugned orders declining full pension and gratuity during pendency of the judicial proceedings and further sought an additional direction to the respondent authority to release/pay full pension and gratuity.

Suneet Kumar, J. after hearing the submissions of the learned counsels for the petitioners and respondents, stated his judgment. He held that pendency of disciplinary/judicial proceedings on the date of retirement or instituted after retirement, provisional pension equal to maximum pension as mandated under Article 919A of the Civil Service Regulations, may be sanctioned to the government servant for the period unto conclusion of the proceedings. (Article 351AA/ Article 919A (1)/(2)) but no gratuity was payable to the government servant during the pendency of disciplinary/judicial proceedings by Administrative Tribunal, until the conclusion of the proceedings and orders being passed thereon by the competent authority under Article 919 A(3).

Reliance was placed on State of U.P. v. Jai Prakash, 2014 (1) ADJ 207 which held that government servant was not entitled to gratuity but to a provisional pension during the pendency of proceedings/enquiry.

Pankaj Mithal, J. also came to the same conclusion and opined that pension of a government servant could be withheld or withdrawn, if he was convicted in a crime or was found guilty of misconduct, but if he was neither convicted nor found guilty of misconduct but a departmental or judicial proceedings or any enquiry by the Administrative Tribunal was pending against him at the time of his retirement or is likely to be instituted, he would be entitled to provisional pension in accordance with Regulation 919A. He emphasized on the sub-clause 3 of Regulation 919-A which laid down that no death cum retirement gratuity shall be paid to the government servant until the conclusion of the departmental or judicial proceedings or the enquiry by the Administrative tribunal and issue of the final order thereon.

Thus, in view of aforesaid facts and authorities, the Court unanimously held that a government employee was not entitled to death cum retirement gratuity unless the conclusion of the departmental proceedings or the enquiry by the Administrative Tribunal or judicial proceedings which included both civil and criminal and the reference to the Full Bench accordingly was answered.[Shivagopal v. State of U.P., 2019 SCC OnLine All 2239, decided on 08-05-2019]

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J. has held that a Government servant is not entitled to make a Will of the family pension which is granted in accordance with the service rules.

Vijay Kumar Kaushik, Head Constable in the Police Department, died in harness. He had two wives and children from each of them. After his death, the first wife and her children (petitioners) made an application under Section 372 of the Indian Succession Act, 1925 for grant of Succession Certificate claiming family pension, gratuity, and other benefits. This was opposed by the second wife and her children (respondents) contending that Vijay Kumar had already made a Will in their favour and also nominated them in service records, and therefore the petitioners were not entitled for grant of succession certificate. Petitioner’s application was rejected by the trial court, which decision had been affirmed by the appellate court. Aggrieved thereby, the petitioners filed the present revision petition under Section 388(3) of the 1925 Act.

Shivali Dubey, Advocate appeared for the petitioners; Devesh Chandra Verma, Advocate represented the respondents (second wife and her children); and Hari Agrawal, Advocate appeared as amicus curiae, whose assistance was appreciated by the Court.

Applying the principles laid down by the Supreme Court in Jodh Singh v. Union of India, (1980) 4 SCC 306; Violet Isaac v. Union of India, (1991) 1 SCC 725; and Nitu Singh v. Sheela Rani, (2016) 16 SCC 229, the High Court recapitulated the guiding principles of law relating to retiral benefits vis-a-vis their testamentary disposition:

(i) An employee has no power of testamentary disposition with respect to something which was not payable to him during his lifetime.

(ii) If the qualifying event/benefit occurs only on the death of the deceased while he is in service and due to this, some monetary benefits accrue, it would not form part of the estate of the deceased and the same cannot be disposed by testamentary disposition because there is an element of uncertainty of happening of event.

(iii) If the scheme and/or service rules designate certain persons who are entitled to receive benefits out of the scheme, then no other person except those designated persons can be entitled to the said benefits.

(iv) If the employee makes no contribution to the benefit, he has no control over the same to dispose it by testamentary disposition.

(v) If the scheme/Rules do not provide for the nomination of any person during the lifetime of the deceased employee, he has no title to the same and it cannot be disposed by testamentary disposition.

However, it was made clear that the said principles are not exhaustive and the condition laid above are independent of each other and not mutually destructive and in the event of any of the conditions being fulfilled, it cannot be said that testamentary disposition can be made with respect to the said benefit.

In light of the principles, the Court decided the present revision petition under different heads. The disbursement of the family pension, gratuity and other retirement benefits in the present case were governed by Chhattisgarh Civil Services (Pension) Rules, 1976. As far as family pension was concerned, it was held that same was payable only to the family of a deceased employee, and Petitioner 1 being the legally wedded wife of Vijay Kumar, she was entitled to the entire amount of the said pension. Similarly, ex-gratia amount and police welfare amount were payable only after the death of the employee. As such, they did not form part of the estate of the deceased and thus could not be disposed by way of testamentary disposition. However, the benefits under the heads of gratuity, leave encashment, group insurance scheme, family benefits fund and department provident funds formed part of the estate of the deceased employee and therefore could be disposed by in terms of the Will made by the deceased employee.

Consequently, the petitioners were held entitled to the Succession Certificate with regard to family pension, ex-gratia and police welfare payment. The revision petition was disposed of in such terms. [Samunda Bai v. General Public, 2019 SCC OnLine Chh 29, dated 15-04-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: The Bench of Sanjeev Kumar, J., disposed of the petition filed against the order of transfer and for release of salary for a certain period with the instruction to pay the salary to the employee for the period the petitioner claimed to have performed his duties. The order of transfer was upheld.

The facts of the case were that the petitioner was transferred from Chadoora to Handwara. The petitioner challenged the impugned order on the ground that his salary for the period when he was working as Junior Engineer in Kupwara was released either by the PHE Division, Kupwara, or the PHE Division, Chadoora. The petitioner was actually relieved after a few months of his transfer notice.  While the petitioner was working in PHE Division Kupwara, his salary for the period from August, 2016 to April, 2017 was not released on account of non-availability of requisite funds in the Division.

The Court held that the challenge to the transfer order should fail because the order was passed in the interest of administration. The petitioner had no right to remain posted at a particular place indefinitely or for a specified period. With regard to release of salary of pay, the Court held that the petitioner cannot be denied the hard-earned salary on any count, if he has worked. The paucity of funds cannot be an excuse to deny the salary to a Government employee. [Ghulam Hassan Khawja v. State of J&K, 2019 SCC OnLine J&K 243, Order dated 07-03-2019]

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Dr S.N. Pathak, J., partly allowed a writ petition filed against the order of the respondent authorities, whereby the authorities recovered the Academic Grade Pay (AGP) granted to the petitioner behind his back on the ground that only promoted employees are entitled for AGP.

The main issue for consideration, in this case, was whether the respondent authorities can recover the AGP granted to the petitioner without following the principles of natural justice.

The Court observed that if excess money is given to a government employee, then it can be duly recovered since such money does not belong to the payer or the payee, it belongs to the public at large. However, in the instant case the petitioner had superannuated on 31-03-2016 and without adhering to the provisions of law, the amount has been ordered to be recovered.

The Court held that it is a settled proposition of law that no recovery can be done from the retiral benefits without conforming to the principles of natural justice and without following the due process of law and hence the respondent authorities cannot recover the AGP granted to the petitioner in the present case. However, the pension of the petitioner was directed to be fixed as per the pay-scale which the petitioner was actually entitled to receive. Accordingly, the petition was allowed in part by the Court.[Ram Pyare Mishra v. State of Jharkhand,2018 SCC OnLine Jhar 781, order dated 03-07-2018]