Case BriefsSupreme Court

Supreme Court: In the case relating to appointment to the post of Post Graduate Assistants in Chemistry departments for the year 2018-2019 in Tamil Nadu, the 3-judge bench of Sanjay Kishan Kaul*, Dinesh Maheshwari and Hrishikesh Roy, JJ was posed with the question as to whether the candidates who secured high marks should have been fitted in the General Turn but have been fitted in Most Backward Class (MBC)/ Denotified Community (DNC) Quota for the last year, which in turn has deprived certain candidates of selection.

The Court held that the increase in MBC/DNC candidates does not impinge on the reservation of seats for other categories, nor does it violate any provision of the Constitution of India. Though, of course, it would imply that some of the other candidates from different reserved categories would not be entitled to fill in the reserved seats of MBC/DNC categories, if those seats would have remained vacant.

The Court, however, clarified that these observations were in the context of the controversy before it as the larger issue of reservation beyond 50%, qua Tamil Nadu, is still pending consideration.

Background

Notification was issued on 12.06.2019 by the Teachers’ Recruitment Board, inviting applications online from eligible candidates for direct recruitment to the post of Post Graduate Assistants and Physical Education Directors, Grade-I in school education and other departments for the year 2018-2019 in Tamil Nadu. The filling up of vacancies for the post of Post Graduate Assistants in Chemistry has caused some disputes in which the respondents were applicants. In terms of the notification, a total of 356 posts were notified for Chemistry, out of which 117 vacancies were available for Most Backward Class (MBC) and Denotified Community (DNC) candidates. The break-up of 117 vacancies was of 74 backlog vacancies and 43 current vacancies.

The respondents, among other candidates, applied for the aforementioned post online and appeared in the written examination on 28.09.2019. Post verification of certificates, a provisional selection list was published on 20.11.2019, but the names of the respondents were absent.

The respondents claimed that on scrutinizing the list, they found that the meritorious candidates under the MBC quota, who would have been selected irrespective of any reservation, had not been considered under the general vacancies but had been appointed in the MBC/DNC quota against the backlog vacancies. This had caused the respondents not to be appointed. It was their case that the meritorious candidates were required to be adjusted against vacancies on merit in the General Turn, and it is only thereafter that the backlog vacancies had to be filled in and thereafter, lastly, the current vacancies under the quota had to be adjusted.

Analysis

The Court agreed with the findings of the single and division bench of the Madras High Court, both and explained that the controversy revolved around the interpretation of Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.

The Section propagates the social philosophy of vacancies for reserved category not lapsing in case there are inadequate number of candidates. Thus, instead of offering it to the general category, a provision has been made to carry forward those vacancies for one year. In case even in the succeeding year, these vacancies are not filled in, then it goes to other categories.

The Single Bench explained that the crucial issue arises from the last sentence of third proviso to Section 27(f) which provides for the selection of appointment for the next direct recruitment to be made “first for backlog vacancies and then the normal rotation shall be followed”. Meaning, thus, has to be assigned to what is implied by the expression “first” vis-à-vis the backlog vacancies.

Section 27(f) merely states that if the required number of candidates belonging to the community which fall under reservation are not available, then, the vacancies, for which selection could not be made in the current year, should be treated as backlog vacancies. In the subsequent recruitment, the backlog vacancies and the current vacancies for the particular community must be separately announced, and the direct recruitment must first accommodate the backlog vacancies and thereafter only, the current vacancies have to be accommodated.

“The provision had been read by the appellants as if the backlog vacancies must be filled in by MBC/DNC category candidates, irrespective of the merit of the candidate or the rank secured by him/her. The highest mark that was secured was 109 and, up to 90 marks, the candidates were fitted in General Turn and thus those candidates will have to be selected under the General Turn, irrespective of their community. It is these candidates who had been fitted in the backlog vacancy which has caused the problem.”

The Division Bench vide the impugned order also opined in the same terms and agreed with the interpretation of Section 27 of the Act by further observing that the proviso which contains the word “first” does not have any relation to the offer and placement of such reserved category candidates, including, Most Backward Classes who attain their position by way of merit in the open category/General Turn vacancies.

Agreeing to both the opinions, the Court said,

“The principle that such of the reservation category candidates who make it on their own merit have to be adjusted against the general category candidates has not been in doubt or argued in view of the catena of judgments cited aforesaid. In our view, Section 27(f) of the Act cannot be read in a manner, apart from any other reason, to negate this very principle.”

It explained that Section 27 deals with the reservation. It has nothing to do with the general candidates list/ General Turn vacancies.

“Such of the candidates who have made it on their own merit albeit, from reserved category, have not sought the benefit of the reservation. Thus, Section 27 of the Act would have nothing to do up to that point. Section 27 would apply only when the reservation principle begins, which is after filling up of the seats on merit.”

Thus, the word “first” would apply at that stage, i.e., the backlog vacancies have to be filled in first and the current vacancies to be filled in thereafter. At the stage when the general category seats are being filled, there is thus no question of any carry forward or current vacancies for reserved category arising at all.

The Court, in Saurav Yadav v. State of Uttar Pradesh, 2020 SCC OnLine SC 1034, stated the steps which have to be taken to fill in the vacancies:

(a) the general merit list to be first filled in;

(b) the backlog vacancies of the particular reserved category to be thereafter filled in “first”; and

(c) the remaining reserved vacancies for the current year to be filled thereafter.

Considering this, the Court said that it appears that such a situation may not arise in the future as all backlog vacancies are stated to have been filled in.

“The performance and merit of candidates, as apparent from the list in question, would itself show as to how many candidates have been successful to attain appointment on a merit position without even availing of reservation- an extremely encouraging aspect!”

Hence, it was held that the increase in MBC/DNC candidates really does not impinge on the reservation of seats for other categories, nor does it violate any provision of the Constitution of India.

[State of Tamil Nadu v. K. Shobhna,  2021 SCC OnLine SC 179, decided on 05.03.2021]


*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Appearances before the Court by:

For appellants: Senior Advocate C. Aryama Sundaram

For intervenors: Senior Advocate S. Nagamuthu

For respondent: Senior Advocate N.L. Rajah

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Case BriefsHigh Courts

Rajasthan High Court: Dinesh Mehta, J., allowed a petition which was involved the question of whether a woman, who had given birth to a child prior to joining the Government service, was entitled to maternity leave under Rule 103 of Rajasthan Service Rules, 1951 (RSR).

The petitioner’s child was born on 15-05-2016, and she was given an appointment on the post of Physical Training Instructor (PTI), Grade-III on 04-06-2016 and joined on 06-06-2016. She applied for the maternity leave on 21-06-2016 and didn’t attend office from 26-06-2016 to 10-11-2016. The petitioner’s leave application came to be dealt with by the respondents whereby 90 days’ leave without payment was sanctioned. By another communication dated 17-07-2019, the petitioner was sanctioned a total 142 days’ leave, out of which 90 days were considered as leave without pay as per communication dated 13-08-2018 and 52 days’ leave was treated as extra ordinary leave (EOL), that too without payment. Despite the completion of probation period of two years, the respondents extended petitioner’s probation period by 112 days and confirmed her services w.e.f. 26-09-2018.

The counsel for the petitioner, Mr Bhavit Sharma submitted that the respondents were not justified in deferring petitioner’s confirmation by 112 days while maintaining that respondents’ action in not granting maternity leave to the petitioner was arbitrary and contrary to Rule 103 of the RSR. The counsel for the respondent, Mr Rishi Soni associate to Mr Pankaj Sharma raised a preliminary objection that the petition suffered from delay and laches. He further submitted that maternity leave was permissible only in a case where a child was born after a female joins her duties as a Government servant.

The Court perused the Rule 103 of the RSR and observed that provision had been incorporated with a view to recover from post-delivery issues and obviate the hardship faced by a mother and observe the mandate of Maternity Benefit Act, 1961. The Court also perused Rule 103-A of RSR and while comparing both the rules concluded that a female Government servant or a mother can avail maternity leave for the period prescribed irrespective of the date of child birth; whereas a male Government servant can avail paternity leave for a period of 15 days during his wife’s confinement. In other words, the date of childbirth, is significant in case of paternity leave, whereas it is not of much relevance in case of maternity leave.

The Court opined that since on the date of promulgation of these Rules, an employee, who had already given birth, was held entitled to avail maternity leave, it will not only be iniquitous but also discriminatory to exclude an employee, who had given birth to a child a few days ahead of joining the Government service. The Court further explained that Rule 103 does not create or confer right on the basis of date of birth. It simply provided that maternity leave may be granted to a female Government servant from the date of its commencement. Regarding delay and laches the Court felt that it was liable to be rejected as petitioner’s leave application remained unattended/unheeded for about two years and to be sanctioned, but without pay, so it cannot be treated to be belated, by any stretch of argument relying on the judgment of Supreme Court in Port Trust v. Hymanshu International, (1979) 4 SCC 176 where it was held,

            “2…The plea of limitation based on this section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable….”

The court while allowing the petition held that petitioner is entitled to grant of maternity leave in terms of Rule 103 of the RSR, irrespective of the fact that she had given birth to the child prior to her joining Government service and Petitioner’s sanctioned leave of 142 days shall be treated as maternity leave and she shall be entitled to salary for the period of such leave, in accordance with Rule 103 of the RSR and shall be deemed confirmed w.e.f. 05-06-2018 (on completion of two years’ service from the date of her joining).[Neeraj v. State of Rajasthan, 2020 SCC OnLine Raj 1864, decided on 07-12-2020]


Suchita Shukla, Editorial Assistant has put this story together.

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]

Case BriefsHigh Courts

Patna High Court: The Bench of Ashutosh Kumar, J. allowed a civil writ petition filed by a work-charged employee and directed the concerned authority to consider his representation for regularization of service afresh after consideration of all facts.

Petitioner who was appointed against a vacant post as a work-charged employee in the year 1984 had approached this Court earlier vide CWJC No. 16872 of 2010 seeking his adjustment in government service on the ground that respondent authorities had adjusted some of the employees engaged as work-charged employee prior to 1985 and even persons who were late entrants in the service were regularized. A Bench of this Court vide order dated 19-06-2018 passed in CWJC No. 16872 of 2010, directed him to make a representation before the concerned authority.

Petitioner’s case was that his representation was considered only for literal compliance of the aforesaid order, but the same was rejected by the Chief Engineer-cum-Special Secretary, Government of Bihar, Patna, without assigning any reason for rejecting his representation. The said order of rejection was challenged vide the instant petition.

Learned counsel for the petitioner, Mr Dilip Kumar, submitted that the necessary information for disposal of petitioner’s representation was not furnished by the Superintending Engineer, but still, the order rejecting petitioner’s representation was passed. Further, the impugned order recorded that only the work-charged employees appointed prior to 1990, and who served for five years continuously and for 240 days each year were to be regularized. However, the said order did not take into account the fact that the petitioner was appointed prior to the cut-off date and had worked for 240 days in one year, which took care of the aforesaid requirement. Thus, the impugned order was not sustainable in the eyes of law.

The Court set aside the impugned order holding that petitioner’s representation had been disposed of on half-baked facts. Petitioner was directed to make a fresh representation before the concerned respondent, who after referring to and verifying all facts, was directed to pass a reasoned order in accordance with the law.[Suresh Prasad v. State of Bihar, 2019 SCC OnLine Pat 507, Order dated 15-04-2019]