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

Allahabad High Court: J.J. Munir, J., addressed an issue with regard to whether a posthumous child is entitled to compassionate appointment under Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.

Petitioner in the instant application claimed compassionate appointment under the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974.

Petitioner a posthumous child, who was in his mother’s womb at the time when his father passed away in a road accident. The application with regard to the compassionate appointment was made by petitioners mother in the year 2003.

The above-referred application was dismissed by the State Government in view of the same being preferred with a delay of 11 years, 10 months and 3 days, reckoning the delay after giving the benefit of relaxation of five years provided under the Rules of 1974.

Analysis and Decision

Bench in view of the facts and circumstances stated that:

A perusal of the right, which a member of the family of the deceased to compassionate appointment has been given by Rule 5 of the Rules of 1974, makes it clear that it is a member of his family who is entitled to claim compassionate appointment when the deceased, who is in harness and a Government employee, suddenly passes away.

 Further, the Court added that an unborn child does have rights under the law relating to property because it is said that an unborn child is an en venture sa mere; but, to extend to an unborn child the right to compassionate appointment would be contrary to the plain intendment of the Rules of 1974. Even otherwise, the welfare measure under the said rules, though construed liberally in case of members of the deceased’s family who have not been able to tide over the financial crisis till a minor attains the majority and applies under the rules, in the opinion of this Court, cannot be stretched to a limit where an unborn child is also to be granted a right to apply under the Rules of 1974.

High Court opined that an extension of the welfare approach under the Rules of 1974  to that limit would do more harm than good to the rights of the citizen, who otherwise have a right to consideration for appointment to posts under the State in accordance with the recruitment rules, postulating equality of opportunity but no concession.

Hence, Bench held that a posthumous child does not qualify for a minor and a member of the deceased Government servant’s family under the Rules of 1974, entitling him to be considered for compassionate appointment, once he attains majority.

Therefore, the petition was dismissed in view of the above discussion. [Avanesh Kumar v. State of U.P., 2020 SCC OnLine All 144, decided on 09-01-2020]

Case BriefsHigh Courts

Madras High Court: The Division Bench of N. Kirubakaran and B. Pugalendhi, JJ., while addressing the present matter, expressed that,

If the Government servant is not complying with the orders of the Government, the same can be treated as misconduct or as unbecoming of the Government Servant, warranting initiation of appropriate departmental proceedings against them.

Government constituted an Administrative Reforms Committee under the Chairmanship of Dr Justice A.K. Rajan, Retired Judge of Madras High Court to ensure the corruption-free and transparent administration and certain recommendations of the said Committee were also accepted by the Government.

In the above-stated recommendations, one of the recommendations was with regard to fixing accountability on every Government Servant, at every stage at every level.

It was also noted that even though the Government Order was passed in the year 2010, none of the departments had taken any effective steps to implement the said Government Order.

Every Government Servant is expected to act in accordance with the Acts, Rules and the Government Orders issued by the Government then and there.

If the Secretary Level Officers have not complied with the orders of the Government, how we can expect a common citizen to comply with the orders of the Government.

Further, the Court added that only on Court’s direction, Government had sent reminders to the respective Departments for implementation of the G.O based on the recommendations of the Administrative Reforms Committee. Even thereafter, only a few Departments responded with certain Circulars or some Administrative Instructions in a vague manner without implementing the said Government Order in true letter and spirit.

“Ignorantia legis neminem excusat” – Ignorance of law excuses no one. Even a common man cannot plead that he is ignorant of law of the Government. When that is the position for a common man, what would be the responsibility of the Secretary Level Officers.

High Court observed that if the Government Orders are utterly disobeyed by the Secretary Level Officers in such a manner, then who can be expected to obey the Government Orders.

In view of the above discussion, Bench stated that it expected a positive response from the State Government on the possibility of amending the existing relevant Government Service Rules, for effective implementation of G.O.(Ms)No. 24, Personnel and Administrative Department, dated 17-02-2010 and to report before this Court. [A.P. Suryaprakasam v. State of T.N., 2020 SCC OnLine Mad 5981, decided on 18-12-2020]

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Sangeet Lodha and Rameshwar Vyas, JJ. dismissed the Special Appeal by upholding the decision of the Single Judge.

The present case is an appeal preferred against the judgment of a Single Judge Bench wherein the division bench upheld the former’s verdict. The facts of the case bring into question the respondent State’s denial to the petitioner/appellant his appointment on compassionate grounds for having more than two children, rendering him non-eligible for service. The petitioner/appellant here is the son of deceased government employee whose survivors could seek an appointment by adhering to the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 (1996 Rules) and Rajasthan Medical and Health Subordinate Service Rules, 1965.

The counsel appearing on behalf of the petitioner/appellant, Vikas Bijamia contended that even though the appellant had three children, he satisfied all other eligibility criteria and was in fact in dire need of the said appointment. Laying too much emphasis on particularly the ‘number of children’ yardstick defeats the underlying purpose of the 1996 Rules i.e. to provide immediate relief to the family of the bereaved.

The Division Judge Bench upheld the previous Judgment by categorically affirming that in absence of any provision for the relaxation of any eligibility qualification and other service conditions in the Rules, an appointment cannot be offered to the dependent of the deceased Government servant.[Ramdev v. State of Rajasthan, 2020 SCC OnLine Raj 1179, decided on 30-07-2020]

Legislation UpdatesRules & Regulations

On the death of a Government servant while in service, the family is entitled to a family pension in accordance with Rule 54 of the Central Civil Services (Pension) Rules, 1972.

The family pension was payable at an enhanced rate of 50% of the pay last drawn for a period of 10 years if the Government servant had rendered continuous service of not less than seven years; thereafter the rate of family pension was 30% of the pay last drawn. In case the Government servant had rendered service of less than seven years before his death, the rate of family pension was 30% from the beginning and family pension at enhanced rate of 50% of last pay drawn was not payable to the family.

The Government felt that the need for family pension at enhanced rate is more in the case of a Government servant who dies early in his career, as his pay at the initial phase of service is much less. The Government has, therefore, amended Rule 54 of the Central Civil Services (Pension) Rules, 1972 by a notification dated 19th September, 2019. As per the amended Rule 54, the family of a Government servant, who dies within seven years of joining service, will also be eligible for family pension at enhanced rate of 50% of last pay drawn, for a period of 10 years.

The above amendment would be effective from 1st October, 2019. However, the families of Government servants who died before completion of service of seven years within 10 years before 1st October, 2019, will also be eligible for family pension at enhanced rates with effect from 1st October, 2019.

The benefit of amended provisions would be available to the families of all Government servants, including the personnel of CAPFs, in the unfortunate event of their death within seven years of joining Government service.

Ministry of Personnel, Public Grievances & Pensions

[Press Release dt. 23-09-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Division Bench of Ramesh Ranganathan, C.J. and Alok Kumar Verma, J. allowed a special appeal where the order passed by the Single Judge was challenged.

The counsel for the State, Paresh Tripathi, submitted that the appellant was concerned with the effect of the declaration of law made by the learned Single Judge, to future cases; and they had no intention of recovering whatever benefit the State had already extended to the respondent-writ petitioner. It was further submitted that the validity of order under the appeal should be examined.

Factual matrix of the case was that the first respondent filed a writ and sought certiorari to quash the letter issued by the second respondent. A mandamus was also sought to command respondent to grant maternity leave and benefits to the petitioner under Maternity Benefits Act, 1961 and to declare Rule 153 of the U.P. Fundamental Rules, adopted by the State of Uttarakhand, as ultra vires and unconstitutional in so far as it relates to placing restrictions in not granting maternity leave to women having two or more living children.

The Fundamental Rule 153, which was applicable to the respondent – writ petitioner who was a government servant read as: ‘Maternity leave on full pay which a female government servant, whether permanent or temporary, may be drawing on the date or proceeding on such leave may be granted to her by the head of the department or by a lower authority to whom power may be delegated in this behalf ……’. Rules were subjected to challenge before the learned Single Judge on the ground that they were in violation of Section 27 of the 1961 Act and Article 42 of the Constitution of India. Section 27 of the Maternity Benefit Act, 1961 stated that the ‘Effect of laws and agreements inconsistent with this Act’.

Further in the order under the appeal the Single Judge relied on a Division Bench Judgment of P&H High Court in Ruksana v. State of Haryana, 2011 SCC Online P&H 4666, and held that the second proviso to FR 153 was not in conformity with Section 27 of the 1961 Act, and was also against the spirit of Article 42 of the Constitution of India. The second proviso to FR 153 of the U.P. Fundamental Rules, as adopted by the State of Uttarakhand, was declared ultra vires and unconstitutional, and was struck down.” The state was directed to provide maternity leaves to the aggrieved.

The counsel for the State contended that a bare reading of Section 2 of the 1961 Act showed that the said Act had no application to government employees; it was only to cases to which the 1961 Act was applicable, notwithstanding any other law to the contrary in terms of Section 27 of the said Act, arose for consideration; Article 42 was in Part-IV of the Constitution, which relates to Directive Principles of State Policy; the provisions of Article 42 of the Constitution are not enforceable by a Court; and, in such circumstances, the order of the learned Single Judge necessitates interference, since the law laid down by the learned Single Judge would apply even to future cases of government servants seeking maternity leave for a third child contrary to the second proviso to FR 153.

On the contrary the counsel for the respondent- writ petitioner submitted that a similar case was dealt by Madras High Court, in J. Sharmila v. Secretary to Education Department, 2010 SCC OnLine Mad 5221, where it was held that “while Article 42 may not be enforceable, the spirit of the provision must be borne in mind by the Government in matters of governance; and the order under appeal does not, therefore, necessitate interference.”

The Court noted that Section 27 of the Act, 1961 related to effect of laws and agreements inconsistent with the 1961 Act, and, in the light of the non-obstante clause in Section 27(1), the 1961 Act shall have effect notwithstanding anything inconsistent therewith contained in any other law whether made after or before the coming into force of the 1961 Act. Any law inconsistent with the 1961 Act would cease to apply in view of the non-obstante clause in Section 27 of the 1961 Act. It was only if the 1961 Act was applicable, would the question of inconsistency between the said Act and the second proviso to FR 153 arise for consideration. A close reference was given to Section 3(e) of the 1961 Act, which defined “establishment”. Further the Court noted that reference to an establishment belonging to Government in Section 2(1)(a) of the 1961 Act must be read in conjunction with Section 3(e) thereof, and, when so read, it would only mean that a factory, a mine, a plantation of the Government, would alone fall within the ambit of Section 2(1)(a) of the 1961 Act.

It was held that though the respondent was a government servant and was not governed by Section 2(1) (a) of the 1961 Act, further the Court held that the proviso of Rule 153 was contrary to the provisions of the Act hence, inapplicable to government. Court stated that the “decision of a High Court will have the force of a binding precedent only in the State or territories over which the Court has jurisdiction. In other States or outside the territorial jurisdiction of that High Court, it may, at best, have persuasive effect. The doctrine of stare decisis cannot be so stretched as to give the judgments of one High Court the status of a binding precedent so far as the other High Courts are concerned.

The Court further stated that the essence of Article 42 required the State government to make provisions for securing just and humane conditions of work and maternity relief, but Article 37 made it clear that the provisions contained in Part-IV shall not be enforceable by any Court, but the principles therein laid-down were nevertheless fundamental in the governance of the country, and it was the duty of the State to apply these principles in making laws.

It was held that the Single Judge had erred in striking down the second provision to FR, as in the absence of any law which provided maternity benefits to the government servants having third child, Article 42 was not enforceable in proceedings before any Court.[State of Uttarakhand v. Urmila Masih, 2019 SCC OnLine Utt 927, decided on 17-09-2019]

Case BriefsHigh Courts

Patna High Court: Shivaji Pandey, J. granted relief in a civil writ petition, brought before the Bench by an employee who assailed the wrong fixation of pay and pension, without any notice, and alleged the same to be an arbitrary use of power on the part of the respondent.

In the present case, the petitioner was appointed as a clerk and later promoted on the Junior Selection Grade with further promotion to Senior Selection Grade and continued on the said post. After the enforcement of 5th Pay Revision Commission, the need-based post was identified for each category including that for Head Clerk. 68 posts of Head Clerk were identified, and accordingly, the petitioner was appointed on the post of Head Clerk in the scale of pay of Rs 5000-8000. When the petitioner retired, his pension was fixed at the pay scale of Rs 5000-8000 for Rs 3843 per month but, later on, the Collector revised the number of need-based post to 29 and, accordingly, the petitioner was not considered in the berth as a Head Clerk and consequently his pay-scale reduced from 5000-8000 to 4000-6000 and, accordingly, his pension was also reduced causing persistent loss of Rs 500/- per month. He along with other employees had filed a suit for the same and they got a decision in their favor. However when the respondents did not abide by the decision, the petitioner, who suffered serious prejudice, was forced to file the present petition seeking the Court to command and direct the respondent to comply with the previously passed order whereunder, the Court had directed the respondents to issue show-cause to the petitioner and pass a fresh order in accordance with law within a period of 12 weeks from the date of show-cause.

The Court held that it is a well known principle of law that when an authority had taken any action prejudicial to the government servant, in such circumstances, it is expected that at least following the principle conforming to Article 14, a show-cause ought to have been served and, on reply, a decision as per law would be taken.

The Court thus, directed the respondent to identify the need-based post immediately and take a decision in the case of the petitioner within a period of three months from the date of receipt of a copy of this order.[Meghwarn Prasad Sinha v. State of Bihar, 2019 SCC OnLine Pat 789, decided on 01-05-2019]

Case BriefsHigh Courts

Meghalaya High Court: Yaqoob Mir, CJ dismissed a petition for compassionate appointment holding it to be without merits.

Petitioner’s father was in Meghalaya Police who died in harness in the year 1999 while debuted for operational duty at Shillong, West Khasi Hills District. In 2017, after a lapse of 18 years, petitioner applied for the compassionate appointment. His application was considered and rejected stating that in terms of the relevant Department Order, the application for appointment on compassionate grounds had to be filed within 1 year from the date of death of the Government servant or from the date of acquiring a necessary educational qualification. Therefore, petitioner’s claim was rejected as time-barred.

R. Sharon, Advocate for the petitioner admitted that he acquired the necessary qualification in 2011 but applied only in the year 2017.

The High Court found favour with submissions of Advocate General A. Kumar. It observed, “Compassionate appointment admittedly is a departure from normal rules of appointment but same has laudable object of saving the deceased’s family from crisis and financial complications. Here in the instant case, the family has survived for 18 years.” Petitioner failed to show any rule which would provide for considering his application and resultantly, the petition was dismissed. [Ravi Koch v. State of Meghalaya, 2019 SCC OnLine Megh 4, dated 04-02-2019]

Case BriefsHigh Courts

Manipur High Court: A Bench of Lanusungkum Jamir, J. set aside petitioner’s suspension order and held him to be entitled to full back wages from the date of suspension.

The petitioner was a peon in Chandel Treasury under Finance Department, Government of Manipur. While in service, he was convicted in a criminal case and sentenced to 2 years of rigorous imprisonment. Subsequently, the Director, Treasuries and Accounts, Manipur issued an order suspending him under sub-rule (2)(a) of Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 in contemplation of disciplinary proceedings. Also, the petitioner was not paid even subsistence allowance since the date o his suspension. The present petition was filed in 2013 and till date, no counter affidavit was filed by the State.

The High Court noted that the suspicion order in contemplation of disciplinary proceedings against the petitioner was issued in view of his conviction as mentioned above. However, no disciplinary proceedings were initiated till date. The Court relied on Union of India v. Tulsiram Patel, (1985) 3 SCC 398 and observed, “It is also a settled principle of law that the conviction on criminal charge does not automatically entail dismissal, removal or reduction in the rank of the concerned Government servant.” It was noted that the petitioner was lingering in the state of suspension for 15 years and that too without any subsistence allowance. Opining that the State could not be permitted to treat the petitioner in such manner, the Court set aside the suspension order. The petitioner was held entitled to full back wages from the date of his suspension along with all consequential service benefits. [L. Ango Anal v. State of Manipur, 2018 SCC OnLine Mani 180, Order dated 13-12-2018]

Case BriefsHigh Courts

Patna High Court: A Division Bench of Ajay Kumar Tripathi and Nilu Agrawal, JJ. dismissed an appeal filed for the wrong exercise of powers by the D.I.G., CRPF, under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965.
The facts of the case states that the appellant was dispensed from the services after giving one months notice under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965 by the DIG, CRPF.
The appellant was said to have not completed the training due to which he did not acquire the status of a permanent government servant which eventually turned down the claim for wrong exercise of power under Rule 5(1) as mentioned above.
One of the arguments made was that during the course of training itself the appellant had suffered injuries which made him incapable of performing his duties; therefore, the appellant should have been protected under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Therefore, the Court held that, the applicability of the Act carries few exemptions in regard to certain organizations and establishments which include the paramilitary force, further the question of alternative employment remains invalid as the appellant had not acquired the permanent status. Appeal was dismissed on the grounds stated above. [Yadav Krishna Mohan v. Union of India, 2018 SCC OnLine Pat 746, order dated 27-04-2018]