Case BriefsSupreme Court

Supreme Court: In a case where a Postal Assistant was accused of committing a fraud of Rs.16,59,065/- but had voluntarily deposited the defrauded amount along with penal interest, the bench of MR Shah* and BV Nagarathna, JJ has held that the same cannot be a ground to interfere with the order of punishment imposed by the Disciplinary Authority and substitute the same from removal to that of compulsory retirement.

The respondent in the case at hand, had, during the period from 2004 to 2007, committed fraud by way of fraudulent withdrawal in 85 RD accounts and by way of non-credit of deposits in 71 RD accounts and defrauded a sum of Rs.16,59,065/-. The Disciplinary Authority had imposed the punishment of removing the delinquent employee from service. The respondent, who had the experience of 39 years, admitted the charge of having defrauded Rs.16,59,065/- and on detecting the fraud, he deposited the defrauded amount of Rs.16,59,065/- along with penal interest.

The Central Administrative Tribunal as well as the Madras High Court, however, substituted the same from removal to that of compulsory retirement. Neither the Tribunal nor the High Court found any irregularity in conducting the departmental enquiry. No procedural lapses were found.

The Supreme Court, however, observed that if it were not for the detection of the fraud, probably, the respondent employee would not have deposited the defrauded amount. Once, a conscious decision was taken by the Disciplinary Authority to remove an employee on the proved misconduct of a very serious nature of defrauding public money, neither the Tribunal nor the High Court should have interfered with the order of punishment imposed by the Disciplinary Authority, which was after considering the gravity and seriousness of the misconduct.

The Court observed that,

“Merely because the respondent-employee had worked for 39 years and in those years, there was no punishment imposed and/or that he voluntarily deposited the defrauded amount along with penal interest and therefore there was no loss to the Government/Department cannot be a ground to interfere with the order of punishment imposed by the Disciplinary Authority and substitute the same from removal to that of compulsory retirement.”

It further said that neither the Tribunal nor the High Court have, in fact, considered the nature and gravity of the misconduct committed by the delinquent officer. Therefore, both, the Tribunal as well as the High Court had exceeded in their jurisdiction in interfering with the quantum of punishment imposed by the Disciplinary Authority.

Holding that no sympathy on such an employee was warranted, the Court observed that,

“Being a public servant in the post office, the delinquent officer was holding the post of trust. Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee. What about the loss caused to the department by way of goodwill, name and fame of the department and its reliability amongst the public? By such a misconduct/act on the part of the delinquent officer, the reputation of the department had been tarnished.”

Hence, the impugned judgment and order passed by the High Court as well as the order passed by the Tribunal substituting the order of punishment from removal to that of compulsory retirement was quashed and set aside and the Disciplinary Authority’s order of removal from service was restored.

[Union of India v. M. Duraisamy,  2022 SCC OnLine SC 464, decided on 19.04.222]


*Judgment by: Justice MR Shah

Madras High Court
Case BriefsHigh Courts

Madras High Court: Expressing that, Legal profession is a noble profession, and it is the lawyer, who plays a predominant role in securing every citizen life and personal liberty fundamental and statutory rights ensured by the Constitution, M. Govindaraj, J., observed that, Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice.

High Court addressed a case of a highly placed Law Officer of the State Government, in order to defend the honour and glory of the noble profession, against the unilateral and arbitrary decision taken by a fickle minded officer, contrary to the specific instructions given by the Chief Secretary, State Government.

The Government need to provide budgetary allocation to Departments, which are very vital for a welfare state to maintain peace and harmony. Thus, the honorarium made to the services of the Law Officers of the State to defend its actions is also a very important, essential and unavoidable expenditure.

In the instant matter, oblivious of the facts and pivotal role played by the respectable and highly placed Law Officer on request, the impugned order of restricting the fee, came to be passed under the pretext of saving expenditure to the Government.

Bench remarked that,

“Once you accept to defend the Government or its agencies, you cannot complain of the poor and nominal fee paid by them, for, the Government is for the people and it is not destined to make profit, but to serve the people.”

“…not only the Government, but also the Law Officers perform their duties without profit motive and with a service mentality for a nominal fee as compared to their lucrative private practice, more particularly the top law officers.”

With regard to the legal profession being a noble profession, the Court expressed that, when a lawyer for an individual client fight for the life and liberty of his client, the Law Officers of the State are cast with onerous responsibilities to strike a balance of individual and fellow citizens rights along with State, its policies, welfare schemes, etc.

Additional Advocate General, J. Ravindran, sitting in an unenviable position in a matter directly touching upon his own office, contested against the petitioner, which shows the Law Officers render their services above self against his own clan, raised serious concerns of impleading Chief Secretary as a party respondent in may petitions unmindful od the fact as to whether the issue pertains to the Chief Secretary or not?

The Court stated that, impleading of Chief Secretary in all the writ petitions, in which, he is not at all answering respondent is causing great hardship. Therefore, the Court directed the Registry in respect of arrayal of unnecessary parties, particularly the Chief Secretary to the Government.

In Court’s opinion, the professional fee paid to the Law Officers will not commensurate to the amount of service rendered, their dedication, amount of time spent, mental and physical labour, age and expertise and their sacrifice of lucrative private practice.

The impugned e-mail challenged in the present petition reflect the same mentality of an individual officer treating the highly placed Law Officer on par with him and unable to digest the special fee paid to him contrary to the concerted decision taken by the High-Level Committee.

The general outlook and attitude of a government servant happens to be of a paid servant.

Further, the Court also observed that,

Lawyers have every right to decline the brief, if his services and his dignity is not respected. In order to do social justice or economic justice an Advocate may accept higher fee from an affluent client and lesser or no fees from a poor or downtrodden litigant.

Court reiterated the instructions issued by the Chief Secretary to Government that “Generally, the special fees claimed by the Advocate General are not to be questioned.” but in the instant writ petition, it was questioned by the respondent contrary to the instructions which always bind on him.

Lastly, the Bench stating that the Rulers may change, but the Government is continuously running machinery and its servants shall not shift their loyalty to Government to please the Rulers set aside the impugned order.

While concluding the matter and considering the plight of the Law Officers, the following directions were issued:

(a)The Law Officers shall be given due respect for their dedication in defending the Government.

(b)In particular, the highest Law Officers, viz., Advocate General and Additional Advocate General, who are required in emergent situation to appear before the Court to defend the interest of the State, the officials shall not insist on the Government Order requesting him to appear and also shall not deny the claim of fee or special fee whatsoever claimed by them in terms of the instructions issued by the Chief Secretary to Government.

(c) The Officials shall be prompt in getting legal opinion in time, giving instructions to the Law Officers in time, if any appeal is preferred, it shall be intimated on time, without any delay. The Government is also equally a litigant which cannot expect a special treatment in condonation of delay matters.

(d) Whenever they seek instructions, the Government shall ensure that its Officials give top priority and produce the information, and records sought by them.

(e) The Law Officer shall be provided with the initial fees and after completion of the litigation the final fee. The said fee shall be paid immediately and it shall not be unduly delayed.

(f) The fee structure of the Law Officers shall be revised once in three years corresponding to the Price Index.

(g)If the bill is submitted by a Law Officer, it shall be settled at once, if not within a reasonable period that is to say to a maximum of two months.

(h) Further, depending on the sensitivity or importance of the case, the fee structure of a private Lawyer will raise. Whereas, the Law Officer of the lower rank will get the same fixed fees and to be particular, in batch matters, they would get fee only for the main matter and for the remaining connected matters, a fixed minimum fee is paid. In such a situation, the Government shall consider immediate payment of fee and treat it is as honorarium to the Law Officers for the enormous efforts and time put in by them.

(i) The Government at any cost shall not reduce the fee than one was fixed at the time of appointing a Law Officer, more particularly, due to the change of regime. As stated earlier, the Government is continuing machinery and defending the case of the Government and of the people is a continuing affair and therefore, the Law Officer shall not be slighted down and they shall be paid with utmost respect which they deserve for the meritorious efforts put by them.

[S. Ramasamy v. State of Tamil Nadu, 2022 SCC OnLine Mad 1519, decided on 15-2-2022]


Advocates before the Court:

For Petitioner :

Mr. G. Rajkumar

For Respondents :

Mr. J. Ravindran

Additional Advocate General Assisted by Mr. Tippu Sultan Government Advocate

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: 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.

An Advocate, S. Chandra Chooden Nair had filed the present public interest petition, in order to bring to the notice of this Court the mala fide and illegal attempt of respondents 1 to 3 to aid and assist the General strike by permitting eligible leave with salary to the State Government employees taking part in the General Strike by not declaring died non in terms of the directions of this Court in WP (C) No. 5752 of 2019. 

Against the policies of the Central Government, respondents 1 to 3 had acted hand in glove with the trade unions and encouraged the Government servants and teachers to participate in the general strike by offering to regularise the absence in strike days as eligible leave with salary.

In WP (C) No. 5752 of 2019, the Government Order granting eligible leave and salary to the striking employees was challenged, and the Court quashed the impugned order directing the respondent 1 to 3 to verify the attendance register and take action in accordance with law.

However, no such steps as stated above have been taken by the respondents to date and infact they have extended unbridled support to the strike by declaring dies-non nor even mandating the compulsory attendance of government servants on the days of proposed General Strike.

Trade Unions offered eligible to leave and salary to the Government servants for abstaining from office.

Analysis, Law and Decision

This Court expressed that it had struck down the Government Order which granted permission to the employer, to grant eligible casual leave to the Government employees and teachers, who has not attended duty during the national general strike, taking note of the statutory provisions, circulars and other decisions.

Further, Rules 86 of the Kerala Government Servants’ Conduct Rules, 1960 makes it clear that no Government servant shall engage himself in any strike or any similar activities.

Government servants should not engage themselves in any concerted or organised slowing down or attempt at slowing down Government work or in any act, which has the tendency to impede the reasonably efficient and speedy transaction of Government Work. Concerted or organised refusal on the part of Government servants to receive their pay will entail severe disciplinary action.

Bench opined that the Government Servant should also take adequate steps to prevent the Government servants to engage in any activity specified in Rule 86 of the Rules.

Whether trade unions can call for a nationwide strike, in matters not related to trade union dispute under the Trade Unions Act, 1926, and when there is no industrial dispute with the employees in Kerala, within the definition of Industrial Disputes Act, 1947?

High Court expressed that, it is the duty of the Government to prevent the Government servant from joining in strikes.

Trade union activities pertaining to the statutory provisions under the Trade Unions Act, 1926, cannot be allowed to impede governance.

Elaborating further, the High Court added that the disciplinary action can be taken if only there was the participation of the Government, which fact again requires a detailed enquiry.

Merely because there is disciplinary action provided, that does not absolve the State Government from taking preventive action. What is prohibited in Rule 86 is different from what is provided in rule 14A of the Kerala Service Rules.

Lastly, the Court found that Government did not issue orders in advance preventing Government servants from taking part in the strike nor provided any machinery enabling others to attend office.

Bench directed the Government of Kerala to issue appropriate orders to prevent the Government servants from engaging in the strike and also to issue necessary orders forthwith to all the Heads of the Departments, to ensure that Rule 86 of the Government Servants Conduct Rules, 1960 and circular extracted above are not violated. [Chandra Chooden Nair S v. State of Kerala, WP (C) 10478 of 2022, decided on 28-3-2022]


Advocates before the Court:

Petitioner Advocate: SAJITH KUMAR V.,REMYA VARMA N.K,APARNA CHANDRAN,GODWIN JOSEPH,VIVEK A.V.

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Murali Purushothaman, J., held that there is a Constitutional as well a statutory obligation on the part of the State to bear the expenses for treatment of the government servant and his family.

Background

The petitioner, an Assistant Professor in Catholicate College had took his father, who was totally dependent on him for treatment General Hospital, Pathanamthitta wherein his father was diagnosed with Carcinoma Rectum and was referred to higher center. Accordingly, he was taken to Medical and Surgical Oncology Department of the St. Gregorious Medical Mission Hospital, Pathanamthitta, a private specialty hospital for Cancer treatment. Subsequently, his father had undergone surgery in the Laparoscopic Department of the that Hospital.

Noticeably, the Government had issued a Notification dated 21-01-2016 empanelling certain private hospitals for treatment to facilitate medical reimbursement benefits under the Kerala Government Servants Medical Attendance Rules, 1960. The name of St. Gregorious Medical Mission Hospital, Pathanamthitta was also appeared in the list of private hospitals recognised by the Government for treatment under Rule 8 (3) of the Rules and the Departments recommended included Medical and Surgical Oncology.

The grievance of the petitioner was that his request for reimbursement of Rs. 4,68,038, incurred by him for his father’s treatment had been rejected by the State on the ground that the department of Laparoscopic surgery at St. Gregorious Medical Mission Hospital was not empanelled under the Rules.

Observation and Analysis

Noticeably, for reimbursement request for the treatment undergone between 12-06-2018 and 23-06-2018, for Rs. 65,756 made by the petitioner an amount of Rs. 23,580 was held admissible by the State and accordingly Rs. 18,864 was sanctioned, being 80% of the amount found admissible. The government had that the petitioner’s father was referred to General and Laparoscopic Department by the Medical Oncologist and considering that the treatment was taken on reference from recognized department, sanction was accorded for reimbursement of 80% of the amount found admissible.

Laparoscopy (keyhole surgery) is one of the types of surgical procedure. Under the Rules, ‘medical attendance’ includes surgical treatment. The Laparoscopic surgery for Carcinoma Rectum is part of surgical treatment of the petitioner’s father. Therefore, opining that it is for the Doctor to decide how a patient should be treated and which surgical procedure is safer and suitable to the patient, the Bench held that when Medical and Surgical Oncology department of the Hospital had been recognised by the Government, the State could not reject the claim of the petitioner saying that the General and Laparoscopic surgery department was not recognized by the Government. The Bench opined,

“Undergoing Laparoscopic surgery for Carcinoma Rectum will not make the treatment as one done in a department other than the Medical and Surgical Oncology department in the Hospital. The procedure done and the treatments received at the Hospital is part of the medical and surgical oncology treatments of the petitioner’s father.”

Findings and Conclusion

The Kerala Government Servants Medical Attendance Rules, 1960 had been framed in exercise of the powers under the proviso to Article 309 of the Constitution of India. It provides for reimbursement of the medical expenses incurred by the government servants and their family as defined therein and subject to the conditions provided therein. Further, there is a Constitutional as well a statutory obligation on the part of the State to bear the expenses for treatment of the government servant and his family, therefore, the Bench was of the view that it was impermissible for the respondents to reject the claim of the petitioner for reimbursement of the bills. Accordingly, government order rejecting reimbursement was set aside.

Similarly, for medical reimbursement, what is relevant is whether the claimant had actually taken treatment and the factum of treatment. Since the fact that the petitioner’s father had surgery for Carcinoma Rectum and was treated in the Hospital during different spells was undisputed, the Bench concluded the action of the State was not legally sustainable. Therefore, the State was directed to consider the petitioner’s request afresh and disburse the amounts due to the petitioner pursuant to such within one month therefrom. [George Thomas v. State of Kerala, 2022 SCC OnLine Ker 613, decided on 31-01-2022]


Kamini Sharma, Editorial Assistant has reported this biref.


Appearance by:

For the Petitioners: Jacob P.Alex, Joseph P.Alex and Manu Sankar P., Advocates

For State: Jimmy George, Government Pleader

Case BriefsHigh Courts

Delhi High Court: 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.

The instant petition was filed by the petitioner under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 for quashing and cancelling the FIR under Sections 376, 323 and 506 of Penal Code, 1860.

Information was received from PCR wherein it was reported that Complainant was not telling anything about the complaint but was asking for urgent police assistance and on reaching the place of the incident she said that she had a scuffle with her male friend (petitioner herein) who tried to assault her.

Complainant later disclosed the act of sexual assault having been committed upon her by the accused (petitioner herein) in his ICD Patparganj Office when she had gone to talk to him regarding their marriage.

Petitioner was a customs officer and met the complainant through the website Jeevansathi.com. He concealed the fact regarding his first love marriage and that his first wife committed suicide for which case was going on this Court.

After a few meetings and conversations, the complainant asked him to proceed with marriage talks, he called her to Faridabad and took the complainant to Vivanta by Taj Hotel and that night petitioner/accused raped her against her will.

Petitioner/accused also told the complainant that he would marry her in Arya Samaj Mandir, but later on, he made excuses that the mandir was closed and also told her to return to Ayodhaya. Later, he stopped picking her phone calls.

In March 2021, petitioner/accused reached Bhopal and put vermilion on the complainant and said that now they were husband and wife, but he did not let her meet his family. Further, in April, petitioner/accused raped her in a car. Complainant again lodged a complaint against petitioner/accused in NCW which finally reached Mahila Thana, Faridabad. In June, petitioner/accused came to that police station and again he made a promise to marry the complainant and accordingly she withdrew her complaint.

Again after a few days, the petitioner/accused molested the complainant and started fingering inside her private parts forcible after which the complainant lodged a PCR call but the petitioner/accused gave threats of dire consequences and ran away from the spot.

In view of the above, FIR was registered, and an investigation went underway.

Analysis, Law and Decision

High Court noted that the petitioner was a Government Servant, working as Superintendent with Customs & CGST Department, Govt. of India, holding a Gazetted post. Being a Government Servant was expected to maintain high moral rectitude and a decent standard of conduct in his personal/private life and not bring discredit to his service by his misdemeanours.

The charges of rape are of grave concern and cannot be treated in a casual manner.

The Bench observed that whether the High Courts, while exercising its jurisdiction under Section 482 CrPC should quash an offence under Section 376 IPC came for consideration before the Supreme Court in a number of cases.

Supreme Court has, time and again, directed that the High Court should not exercise its jurisdiction under Section 482 Cr.P.C to quash an offence of rape on the ground that the parties have entered a compromise.

 Catena of decisions were referred, such as:

In the present matter, the parties compromised amicably and respondent 2 filed an affidavit stating that she and the petitioner married each other and that she had no objection if the present FIR was quashed as she did not wish to pursue any proceedings.

“…by simply entering into a compromise, charges cannot be said to have been mitigated or that the allegations leveled by the respondent 2 regarding the alleged offence lost its gravity by any means. Act of rape is not an act against individual, but this is an offence against the society.”

In view of the legal position enumerated in Gian Singh v. State of Punjab, (2012) 10 SCC 303 along with other cases referred above, the criminal proceedings from FIR registered with allegations of rape cannot be quashed in exercise of powers vested in this Court under Section 482 CrPC on the basis of settlement and subsequent marriage as it would not waive off the offence alleged by the complainant.

Therefore, petition was dismissed. [Swatantara Kumar Jaysawal v. State, 2022 SCC OnLine Del 30, decided on 3-1-2022]


Advocates before the Court:

For the Petitioner:

Mr. Manoj Chaudhary and Mr. Sachin Anand, Adv.

Petitioner in person.

For the Respondents:

Mr Rajesh Mahajan, ASC with Ms Jyoti Babbar, Adv.

Mr Lalit Valecha, Adv. for R-2

R-2 in person.

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah and B.V. Nagarathna*, JJ., held that the action of the selectively applying the proviso to Rule 25(a) in relation  to one person, while not applying the said proviso in relation to similarly situated persons, is arbitrary and therefore illegal. The Bench stated,

“We accept the settled position of law that the rule applicable in matters of determination of pension is that which exists at the time of retirement, we are unable to find any legal basis in the action of the respondent University of selectively allowing the benefit of Rule 25 (a).”

Factual Matrix

The appellant joined as a Lecturer in the School of Legal Studies in Cochin University of Science and Technology on 07-09-1984. Prior to such appointment, the appellant was a lawyer practising in the District Court and Subordinate Courts and High Court of Kerala. The appellant made a representation before the Registrar of the University, requesting to reckon his practice of eight years at the Bar for the purpose of determining his pensionary benefits payable to him on his superannuation as provided under Rule 25 (a), Part III of Kerala Service Rules.

The respondent rejected the request of the appellant on the ground that the proviso to Rule 25 (a), Part III, KSR provides that the benefit under Rule 25 (a) would be available only to such employees who are recruited when practising at the Bar, to those posts requiring a qualification in law and experience at the Bar. Therefore, the respondent opined that since experience at the Bar was not essential for appointment to teaching posts at the University, the question of reckoning previous experience at the Bar would not arise in relation to the appellant.

The appellant stated in his appeal petition before the Chancellor that the proviso to Rule 25 (a), Part III, KSR was inserted in said Rule with effect from 12th February 1985. The appellant contended that the proviso could not be made applicable to him as the same was not in force as on the date on which he joined service at the respondent University. On the other hand, the respondent maintained that the Government or any other statutory body has the right to modify the service conditions, even retrospectively. The respondent further stated that since the proviso was introduced in Rule 25 (a) while the appellant was still in service, the proviso would apply to him.

Findings of the Court

Noticeably, in the case of one Dr. P. Leela Krishnan, a Professor of Law who was similarly situated as the appellant, the respondent University had duly considered the period of practice at the Bar as a part of qualifying service for the purpose of determining pension payable on superannuation, as perusal of extracts from the pension book of Dr. P. Leela Krishnan, revealed that his experience of practice at the Bar of 7 years, 2 months and 26 days was added to the period of his service at the  University, being 26 years, 9 months and 2 days. Accordingly, the respondent University had in determining his superannuation pension, considered 33 years, 7 months and 4 days as the qualifying period of service.

“Considering that no argument had been advanced on behalf of the respondents as to the manner in which the case of the appellant is different from that of Dr. P. Leela Krishnan and on what basis the benefit of Rule 25 (a) was granted to Dr. P. Leela Krishnan but was withheld in relation to the appellant.”

Pointing out the similarities between the two, the Bench stated, both these individuals were appointed as teaching faculty at the respondent University after practicing as advocates in various Courts of Kerala. They were both appointed before the proviso to Rule 25 (a) came into effect, i.e. before 12-02-1985 and retired after the said proviso came into force.

“In the circumstances, we find no valid ground to sustain the application of the proviso in relation to the appellant, thereby denying the benefit of Rule 21 25(a), when the same was not applied in the case of Dr. P. Leela Krishnan, thereby allowing the benefit of Rule 25(a).”

The law, as recognized in Deoki Nandan Prasad v. State of Bihar, (1971) 2 SCC 330, and Government of Andhra Pradesh v. Syed Yousuddin Ahmed, (1997) 7 SCC 24, states that the pension payable to an employee on retirement shall be determined on the rules existing at the time of retirement. However, the Bench stated, law does not allow the employer to apply the rules differently in relation to persons who are similarly situated. Therefore, the Bench opined that if the respondent University sought to deny the benefit of Rule 25 (a), in light of the proviso which was subsequently inserted thereby limiting the benefit of the Rule, it ought to have done so uniformly; as the proviso could have been made applicable in relation to all employees who retired from service of the respondent University following the introduction of the proviso, i.e. after 12-02-1985.

Conclusion

In the light of above, the Bench held that the denial of the benefit under Rule 25 (a), KSR, to the appellant was arbitrary and not in accordance with law. Consequently, the appellant was held entitled to receive pension having regard to his total qualifying service, inclusive of the period of his service at the respondent University and the period of his practice as an Advocate in various Courts of Kerala.

Accordingly, the impugned judgment of the High Court, whereby it was approved the action of respondent university was set aside. The respondent University was directed to calculate the amount of pension short paid to the appellant from the date of his superannuation and disburse such amount together with interest at the rate 5% p.a. till date of payment in favour of the appellant.

[G. Sadasivan Nair v. Cochin University of Science and Technology, 2021 SCC OnLine SC 1155, decided on 01-12-2021]


Kamini Sharma, Editorial Assistance has put this report together 


Appearance by:

For the Appellant: K.P. Kylasanatha Pillay, Senior Counsel along with Sajith P. Warrier, Counsel

For the Respondents: Malini Poduval, Counsel

For the State: G. Prakash Counsel


*Judgment by: Justice B.V. Nagarathna

 

Tags: Service Law, Government Servant, University, Teacher, Bar Council, Experience, Retirement, Superannuation, Pension

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of A.K. Jayasankaran Nambiar and Mohammed Nias C.P, JJ., directed the government of Kerala to consider the period spent on treatment and hospitalization due to road accident as Special Disability Leave and grant all the benefits related to it.

The writ petitioner, a School Teacher in the G V Higher Secondary School, had met with an accident while she was riding her scooter on her way to school from her residence. Pursuant to which she sustained injuries and was hospitalised and was under treatment during the period from 17-08-2012 to 16-12-2012.

The petitioner claimed the benefit of special disability leave in terms of Rules 97 and 98 of Part I of the Kerala Service Rules [KSR], but her claim was rejected by the Regional Deputy Director, Higher Secondary Education on the ground that that the injury suffered by the petitioner could not be seen as either caused in, or in consequence of the due performance of her official duties or in consequence of her official position. It was essentially stated that the travel from her residence to the school could not be seen as a travel in connection with her employment. The petitioner, therefore, preferred an appeal before the Government, which too was rejected by the same ground.

The petitioner then impugned the said Government Order before this Court, when the Single Judge quashed the impugned order and directed the authority competent to take up the application of the petitioner again and pass a fresh order thereon. Consequently, the respondents once again rejected the claim of the petitioner stating that the accident that occurred in the course of travel of the petitioner from her residence to the school could not be considered as one that occurred during the performance of her official duties.

The Bench observed that after considering the provisions of Rules 97 and 98 of Part I KSR, the Single Judge had found that the injury suffered by the petitioner while she was admittedly, on her way to work had to be seen as an injury suffered consequent on her employment. Accordingly, the Single Judge had directed the respondents to sanction the special disability leave applied for by the petitioner.

Further, the Bench rejected the grounds relied by the respondents by opining that a mere perusal of the provisions of Part I KSR which deal with various kinds of leave would reveal the underlying scheme therein which is that the sanction of various kinds of leave are contemplated only once it is established that the employee-employer relationship continues to exist without interruption. Since, as per the specified provisions the difference in the kinds of leave sanctioned was only in respect of the periods for which an employee could remain absent from work and the monetary benefits, if any, that will be paid to the employee during the said period.

Thus, the Bench stated that when the provisions of Rules 97 and 98 of Part I KSR that prescribe the conditions for the grant of leave are interpreted, the interpretation to be placed must be one that recognizes the above scheme and its intent, and furthers such intent.

In the light of the above, the Bench held that the phrase “caused in, or in consequence of due performance of his official duties or in consequence of his official position”, which appear in both the Rules aforementioned, cannot be construed in a narrow and pedantic fashion so as to exclude a person who was admittedly an employee, who was travelling from her residence to the place of work at the time when the accident took place. Accordingly, the Bench refused to interfere with the liberal view taken by the Single Judge and the appeal was dismissed. [State of Kerala v. Shylaja K. Unnithan, WA No. 1409 of 2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the State: A.J.Varghese, Sr. Government Pleader

For the Appellant: K.Sasikumar, P.S.Raghukumar, S.Aravind and K.Janardhana Shenoy

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah and A.S. Bopanna*, JJ., condoned the non pensionable sandwiched period between pensionable services rendered in Central and State government for the purpose of providing a single bock of pensionable service.

The appellant worked as a Technician in the Telecom Department during the period 05-02-1974 to 31-05-1984. Later on, the appellant joined the Technical Education Department on 31-05-1987, where he served till 30-06-2006 and got retired on attaining the age of superannuation. During the period between those services the appellant had worked in Steel Industries Limited, Kerala (SILK), a Public Sector Undertaking.

The appellant had requested the State to condone the period served by him in PSU and consider the services rendered by him under the Telecom Department and Education Department as one for granting pension which was rejected by the State. On application the Kerala Administrative Tribunal allowed benefit of pension to the appellant by condoning the period of break in service, as being permissible in the circumstance. However, the same was set aside by the High Court by the impugned judgment.

Admittedly, the service rendered by the appellant in ‘SILK’ which was a PSU was not pensionable service. Therefore, the said period of service acted as a disconnect between the two different pensionable service and the same needed to be condoned to provide a single block of pensionable service.

The case of the appellant was not that the non­ pensionable service be reckoned and the entire service from 05-02-1974 to 30-06-2006 be admitted for computing the pensionary benefits as assumed by the High Court.

Rather what the appellant sought was to exclude the service rendered in ‘SILK’ and condone that period from being treated as a disjoint or break between the two pensionable services.

The appellant had relied on a Government Order dated 12-11-2002 by which the government had declared that the employees of the State Government Departments who had left the former service in Central Government/ Central Public Sector Undertakings on their own volition for taking up appointment in State government Departments will be allowed to reckon their prior service for all pensionary benefits along with the service in the State Government Department.

Similarly, the Government Order dated 24-09-2014 the government had provided for condonation of the non­qualifying sandwiched period to reckon the qualifying service.

After perusing the referred Government Orders, the Bench opined that the benefit sought for by the appellant was provided and the sandwiched non qualifying service as break in the two services was condonable and the prior public service should be reckoned as qualifying service for pension.

Rejecting the State’s contention that the appellant had retired on 30-06-2006, while the Government Order was dated 24-09-2014 and as such could not be made applicable retrospectively, the Bench stated the issue had not been settled and not reached finality in the case of the appellant since his review petition dated 17-09-2014 was still pending when the Government Order was issued. Moreover, the said Government Order in para 2 had taken note of the several requests received to reckon the prior qualifying service.

In the backdrop of above, the Bench was of the opinion that the Tribunal was justified in its conclusion and the High Court had erred in setting aside the same. Accordingly, the impugned order was set aside and the order of the Tribunal was restored for its implementation.

[Valsan P. v. State of Kerala, 2021 SCC OnLine SC 953, decided on 21-10-2021]


Kamini Sharma, Editorial Assistant has put this report together 


Appearance by:

For the Appellant: P.V. Surendranath, Senior Counsel

For the Respondent: C.K. Sasi


*Judgment by: Justice A.S. Bopanna

Case BriefsHigh Courts

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

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

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

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

Factual Background

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

The petition was filed on the following grounds:

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

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

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

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

Analysis, Law and Decision

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

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

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

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

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

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

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

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

Settled Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bench remarked that,

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

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

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

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

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


Advocates before the Court:

For Petitioner:

B.S. Bagga, Advocate

For Respondents:

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

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

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

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]

Uttarakhand High Court
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]

Patna High Court
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]

Patna High Court
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]