Amendments to existing lawsLegislation Updates

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]