Case BriefsHigh Courts

Uttaranchal High Court: Ravindra Maithani, J., allowed a writ petition which was filed by the petitioner who was aggrieved by the advertisement dated 29-12-2018 published by respondent 4 for filling up one post of Assistant Clerk in the Intermediate College. He sought that the advertisement be quashed and respondents be directed to consider the petitioner for promotion to the post.

Petitioner was appointed as Class IV employee in the School on 02-08-1997 when it was a high school. It was upgraded to intermediate and various posts were accordingly sanctioned. It was the case of the petitioner that after promotion of the first Assistant Clerk as Head Clerk, the post of Assistant Clerk fell vacant, which was not filled up on time.

Counsel for the petitioner, Mr Ashish Joshi contended that one Bhupal Singh Gusai had filed Writ Petition (s/s) No.253 of 2012 (“the first petition”) claiming the post of Assistant Clerk, but the department did not consider his case. It was decided on 08-02-2013 and at that time Bhupal Singh Gusai was recommended by respondent 4 for promotion to the post of Assistant Clerk, subsequently, he was promoted as Assistant Clerk. The counsel contended that instead of promoting the petitioner the respondent no.4 initiated the process to fill up the post by way of direct recruitment, which was against Regulation 39(2)(2) of the Chapter three of the Regulations (“the Regulations”) framed under Section 24 of the Uttarakhand School Education Act, 2006 (“the Act”).

Mrs Indu Sharma, Brief Holder for the State/respondent 1 to 3 submitted that there was no provision regarding filling up of single post by way of promotion from amongst the Class IV employees; there were no instructions from the Government to fill up a single post by promotion.

Mr Pankaj Chaturvedi, counsel on behalf of the Committee of Management, in their counter affidavit had stated that by resolution dated 12-09-2018, it was resolved that the post shall be filled up by way of direct recruitment and accordingly recommendation was made to the respondent 3, who had approved it.

The Court observed that the issue revolved around the interpretation of the Regulations, which provided for promotion to the post of Assistant Clerk. The Court explained that, Sub-Regulation (2) of Regulation 2 of the Chapter three, inter alia, provides that 50% of the total sanctioned posts in the clerical cadre shall be filled up by way of promotion of working Group IV employees, who are eligible and who had worked continuously for five years on a substantial post and whose service record is good. It also provides that the promotion shall be on the basis of merit subject to rejection of unfit. The comment appended to Sub-Regulation (2) of Regulation 2 of Chapter three provides that, “while computing 50% posts, less than half shall not be considered and half or more than half shall be considered as one.”

The question before the Court was that since last time the post was filled up by way of promotion, this time the respondent 4 resolved to fill up the post by way of direct recruitment and it was accordingly approved by respondent 3 but, can it be done? The Court answered in negative explaining that, Regulations do not provide that in case of single post, if once the post had been filled up by way of promotion, on the second time it may be filled up by way of direct recruitment and so on. Regulation 2 of Chapter three of the Regulations is clear on this point. It provides that 50% of the sanctioned posts of the clerical cadre shall be filled up by way of promotion from amongst eligible Group IV employees. It does not stop here. The comment appended to Sub-Regulation (2) of Regulation 2 makes it further clear that while computing 50%, less than half shall be ignored, but half or more than half shall be counted as one.

The Court while allowing the petition decided that the advertisement needed to be quashed as the respondents did not construe the regulations properly as in the instant case there was only one post. The Court while answering the second question as to whether the petitioner could be promoted to the post of Assistant Clerk the Court held that as there were other employees senior to the petitioner in the cadre, from which the post of Assistant Clerk was to be filled up by way of promotion, so the Court directed the respondents to undertake the process to fill up the post of Assistant Clerk in the school by way of promotion from the eligible Group IV employees.

[Asha Ram Ghansela v. State of Uttarakhand, 2021 SCC OnLine Utt 452, decided on 10-05-2021]


Suchita Shukla, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Jammu and Kashmir High Court: The Division Bench of Tashi Rabstan and Ali Mohammad Magrey, JJ., addressed the instant petition seeking for issuance of directions to the government for providing promotion opportunities to the persons working as restorers in the High Court. The Bench remarked,

“It is settled position of law that right of consideration for promotion to the next higher post is a fundamental right of an employee. Opportunity of advancement in service career by promotion is considered to be a normal incidence of service.”Ser

The grievance of the petitioners was that they were working as Restorers in the High Court of Jammu and Kashmir and that they had remained stagnated on the said posts as there were no promotional avenues available for them in terms of the rules governing the field. It was stated that the grade attached to the said posts of Restorers was Rs.2610-3450 (pre-revised) which was neither commensurate to the duties being performed by the petitioners nor at par with their counterparts working in the other High Courts of the country. The petitioners had filed a representation before the Registrar General of the High Court for seeking redressal of their grievances. The registrar, in return, had requested the government to accord approval for upgradation of pay scale of Restorers working in the High Court from 2610-3450 (pre-revised) to 3050-4910 (pre-revised).

However, despite there being recommendations for upgradation of pay scale the Government did not consider the case. The issue was threadbare discussed and examined by the High-Level Committee constituted for this purpose which was headed by Financial Commissioner, Finance Department. The Committee finally recommended that pay scale attached to the post held by all the employees working in the High Court could not be upgraded as it would lead to similar claims from similarly placed employees of the State Government and it may also result in pay anomalies.

Ultimately, keeping in view the demands of the employees, and also the direction passed by this  Court in Joginder Singh v State, the government decided that special pay equivalent to the 10% of the basic pay may be allowed to the employees.  The said benefit of the “Special Pay” had already been accepted by the employees and the Restorers had also been allowed the same benefit. The government contended that the case of the Restorers could not be examined in isolation from other employees of the High Court. Since, all the employees working in the High Court were governed by the same rules, same yardstick had to be adopted/ followed for each of such category of employees while considering their case of upgradation of pay scale.

The petitioners contended that the course of action adopted by the Government in intermingling the issue of upgradation of the grade attached to the posts of Restorers, with the grant of ‘Special Pay’ could not be countenanced at all.

The ‘Special Pay’ in favour of the employees working in the High Court was granted by the Government in recognition to the special duties being performed by such employees and same was a distinct element which, in no circumstance could be merged with the basic pay.

The Bench, after perusing the recruitment rules/ orders governing the service conditions of the petitioner-Restorers observed that the standing mode for filling up the available vacancies of Restorers in the High Court was 100% by direct recruitment, but, at the same time these Restorers had not been made the feeding cadre for any higher post, meaning thereby that there were no avenues for their promotion to the next higher post at all. The Bench expressed,

“Availability of reasonable promotional opportunities in service generates efficiency and fosters the appropriate attitude to grow for achieving excellence in service.”

The Supreme Court, in Council of Scientific and Industrial Research v. K.G.S. Bhatt, (1989) 4 SCC 635, in order to emphasize the importance of promotional avenues to obviate stagnation in service had held as follows:

“…an organization, public or private, does not ‘hire a hand’ but engages or employees a whole man. The person is recruited by an organization not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance…Every management must provide realistic opportunities for promising employees to move upward.”

It had been repeated and reiterated in a catena of judicial dictums that absence of appropriate promotional prospects in service is bound to degenerate the employees. Stagnation in service on the same post for quite a long period of time and lack of any promotional avenues kills the desire to serve properly. The Bench observed,

“The petitioners have been discharging their duties on the posts of Restorers in the High Court since a long period of time with the legitimate expectation that in due recognition of such services being rendered by them, they will be provided appropriate promotional avenues as is the procedure prevalent with regard to the rest of the posts borne on the establishment of the High Court.”

The factum of stagnation in service qua the petitioners was clearly evident even to a naked eye as, in their entire length of service, not even a single promotional avenue was available to the petitioners. In view of the foregoing analysis, the Bench disposed of the instant petition by directing the Government to consider the recommendations of the High Court for upgradation of the grade attached to the posts of Restorers notwithstanding the grant of ‘Special Pay’ and pass appropriate orders thereon. Further, in view of the stagnation in service being faced by the petitioners, the Bench directed the Registrar of the High Court,to consider the case of the petitioners for exploring the possibility of creating suitable promotional avenues in favour of the petitioners by making appropriate amendment in the rules governing the field commensurate to the present status/ qualification of the petitioners. [Latif Hussain Khan v. State of JK, WP(C) No.1410/2019, decided on 26-02-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Sr. Adv. Rohit Kapoor and Adv. Ankit

For the Respondents: Sr. AAG B. A. Dar and Adv. Masooda Jan

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian*, JJ has set aside the order of the single bench of Jammu and Kashmir High Court which quashed an administrative Order of the Chief Justice prescribing certain qualifications for promotion to the post of Head Assistant along with a power of relaxation, persons who were fully qualified as per the rules at the time of appointment. The Court held,

“… the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16.”

Background

The respondents were originally appointed as peons (Class-IV) during the period 1989¬1995. They were promoted as Junior Assistants in the year 1997 and as Senior Assistants in 1998-1999.

In contrast, the appellants in these appeals were directly recruited to the post of Junior Assistants in the year 1998. They were promoted as Senior Assistants on various dates in the years 2001, 2005, 2006 and 2008.

In exercise of the power conferred by Rule 6 of the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968, the Chief Justice of the High Court of Jammu & Kashmir issued an Office Order No.579 dated 24.10.2008, prescribing the qualifications as well as the mode of recruitment for appointment and promotion to various posts in the High Court.

By a common Order dated 30.08.2013, a learned Judge of the High Court quashed the Chief Justice’s Order dated 24.10.2008 on the reasoning

(i) that all persons working as Senior Assistants constituted a homogenous group and hence there cannot be any differentiation among them on the basis of educational qualifications;

(ii)that the Chief Justice’s order dated 24.10.2008 was not put up before the Full Court for approval;

(iii) that Note¬2 of the Chief Justice’s Order restricts the power of relaxation available to the Chief Justice only to cases of persons appointed before 25.04.1987 and hence it is invalid; and

(iv) that the Order of the Chief Justice had the effect of affecting individuals adversely with retrospective effect.

The said judgment was challenged on the ground that the High Court was wrong in thinking that Note¬2 of the Order of the Chief Justice curtailed or restricted the power of relaxation available with him.

Analysis

In exercise of the powers conferred by Sub-section (2) of Section 108 of the Constitution of Jammu & Kashmir, the High Court issued a set of Rules known as the Jammu & Kashmir High Court Staff (Conditions of Service) Rules, 1968, with the approval of the Governor of the State.

“While Rule 4 stipulates that all appointments of the staff of the High Court including promotions shall be made by the Chief Justice, the power to lay down the qualifications and to determine the mode of recruitment is conferred by Rule 6 upon the Chief Justice.”

The prescription of the minimum educational qualification of a graduation, was not an innovation by the Chief Justice, made all of a sudden in the year 2008. It appears that even way back on 25.04.1987, graduation was prescribed as a qualification for promotion to the post of Head Assistant.

“If the authority conferred with the power to relax, chooses to regulate the manner of exercise of his own power, the same cannot be assailed as arbitrary. The notification dated 25.04.1987 prescribed for the first time, graduation as a necessary qualification. This is why, the Chief Justice chose by his Order, to limit his own power of relaxation to cases where appointments were made before the cut-off date.”

Further, it is worth noticing that the respondents have actually secured a second lease of life, after having failed in the first round of litigation. After the office Order dated 24.10.2008 was issued by the Chief Justice prescribing the qualifications for direct recruitment/promotion to various posts, the contesting respondents got promoted as Head Assistants on 24.11.2008 only because suitable eligible candidates were not available.

“It is only after their promotion was set aside in the first writ petition filed by the qualified candidates, that the contesting respondents woke up from the slumber and initiated a second round of litigation by challenging the Order of the Chief Justice.”

The Order of promotion dated 24.11.2008 promoting the contesting respondents as Head Assistants made it clear that their appointments were only till eligible and suitable candidates are posted to these posts and that they can be considered for regularisation/appointment only if they attain the qualification and experience prescribed for the post. But the contesting respondents did not choose to challenge the Order of Chief Justice dated 24.10.2008, until the writ petition filed against their promotion was allowed by the single Judge and the Order also got confirmed in writ appeal by the Division Bench.

The contention that the Order of the Chief Justice affects the staff adversely with retrospective effect was also found to be completely incorrect.

“The Order dated 24.10.2008 did not at all impact the promotions gained by persons upto 24.10.2008. We are concerned in this case with the competing claims of the appellants and the contesting respondents for promotion to the post of Head Assistant. The entitlement of unqualified candidates to seek promotion to the post of Head Assistant after 24.10.2008, is what was impacted by the Order of the Chief Justice.”

It was hence held that the High Court erred in thinking that the impugned action of the  Chief Justice violated Article 14 by creating a distinction between graduates and non graduates among the same category of persons who constituted a homogenous class.

“… the Court shall have to be conscious about the need for maintaining efficiency in service, while judging the validity of the classification. Though the High Court took note of these decisions, the High Court fell into an error in thinking that in the facts and circumstances of the case, the High Court could not establish the necessity for higher qualification for the efficient discharge of the functions of higher posts. It is apparent from the facts and circumstances of the case that the non-graduates have had opportunities to qualify themselves, which they have also done. Therefore, the prescription of graduation as a qualification for promotion to the post of Head Assistant cannot be held as violative of Articles 14 and 16.”

Relief 

However, in view of the fact that the contesting respondents have been working in the post of Head Assistants for quite some time and have also acquired the necessary qualifications, the Court held that they need not be reverted at this stage.

“But the seniority of the appellants vis-a-vis the contesting respondents shall be based on the dates of acquisition of such qualification and the length of service taken together. In other words, the seniority of the contesting respondents will be decided not on the basis of the date of their promotion but on the basis of the date of their acquiring the qualification while occupying the promoted posts.”

[Ashok Kumar v. State of Jammu and Kashmir, 2021 SCC OnLine SC 24, decided on 18.01.2021]


*Justice V. Ramasubramanian has penned this judgment 

Case BriefsHigh Courts

Kerala High Court: The Division Bench of K. Vinod Chandran and V. G. Arun, JJ., addressed the present petition filed by BSNL against the order of Central Administrative Tribunal.

The Tribunal had upheld the claim of the respondent for consideration of promotion as Sub Divisional Engineer (“SDE”) in 3% disability quota under the Persons with Disabilities Act, 1995; thereby allowed the O.A. while relying on the judgment in Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153.

BSNL contended that there was a reference made by another Division Bench of the Supreme Court regarding the judgment relied on the Tribunal. Hence, the order of the Tribunal suffered with flaws.

The Court observed that the reference had now been answered by the Supreme Court in Siddaraju v. State of Karnataka, 2017 SCC OnLine SC 1940, whereby the Larger Bench had affirmed the decision of the Division Bench. Therefore, now from promotions to vacancies, even where there is no direct recruitment, the 3% quota for disabled persons has to be complied with. The Court upheld the order of the Tribunal and directed BSNL to consider the respondent for promotion to the post of SDE on completion of three years as Junior Telecom Officer (“JTO”) w.e.f. 23-07-1996. It was further directed that promotion to the post of Divisional Engineer should also be considered on the expiry of six years from the date of notional promotion as SDE.

Counsel for BSNL, T. Sanjay sought time for the purpose of enabling the organisation to get the details of the disabled persons and consider them according to their seniority to be accommodated in the 3% vacancies on All India basis, contending that now when promotions were to be made on the basis of quota of 3% as prescribed under the Act of 1995, it had become necessary that the other disabled persons, who might be entitled to be considered, also be given an opportunity.

The Court accepted the prayer of BSNL and granted it time of four months. The Court noticed that the respondent had applied for voluntary retirement from the post of Divisional Engineer and if promotions were granted to him notionally from an earlier date, fixation of salary would have to be carried out and increments too had to be granted in the higher scale. It was held that though on such notional revision the respondent would not be entitled to any arrears of pay, the retirement benefits including any ex-gratia amounts paid in lieu of voluntary retirement, should be revised in accordance with that and the arrears if any should be paid as well. [Bharat Sanchar Nigam Ltd. v. M.G Prabhakara Panicker,  2020 SCC OnLine Ker 8664, decided on 23-01-2020]

Case BriefsHigh Courts

Uttaranchal High Court: Lok Pal Singh, J., disposed off a writ petition while allowing it which was filed seeking to issue a writ in the nature of mandamus directing the respondent 3 to forthwith release the salary of the petitioner for the month of July, 2017 to December, 2017 and onwards, along with the interest on the delayed payment.

The petitioner was appointed as Clerk in the respondent department and was given promotion from time to time. It was contended that due to ill health, he proceeded on medical leave with effect from 22-06-2017. Thereafter, the petitioner had submitted his application for earned leave from 15-07-2017 to 08-10-2017. The petitioner resumed his duties on 09-10-2017 in the office respondent department-respondent. Thereafter, the petitioner had appeared before the Medical Board on 16-10-2017 and submitted all the medical documents to the concerned Medical Board. The petitioner stated that respondent department had not released the salary of the petitioner for the month of July to December, 2017. The respondent 3 stated that the petitioner remained absent from duties for which he availed medical leave but the medical board with regard to the application of medical leave of the petitioner, he was directed to remain present before the Medical Board, initially he did not appear before the Medical Board but subsequently, when he appeared before the Board on 16-10-2017, it was found that the disease which is mentioned in the medical certificate, no medical tests relating to the same had been done. The petitioner however denied the averments made in the counter affidavit.

The Court perused the records and found that due to illness petitioner applied for medical leave w.e.f. 22-06-2017 to 14-07-2017 but as he could not recover from such illness and could not join his duties on 15-07-2017, he applied for earned leave for 15-07-2017 to 08-10-2017. He resumed his duties on 09-10-2017 and thereafter he submitted a representation before the District Magistrate, whereby he had requested that the medical leave taken by him be also treated as earned leave and prayed to grant him earned leave of 109 days. Such request was not accepted and the salary of the petitioner for the said period was withheld.

The Court while allowing the petition explained that “It may be time that the petitioner has acted as per his own whims and fancies and as has been alleged by the respondent authority but the fact remains that salary is a property under Article 300-A of the Constitution of India which cannot be taken away except by authority of law.”

It further directed to treat the leave taken by the petitioner July, 2017 to December, 2017 as earned leave and to pay the salary for the aforesaid period to the petitioner within a period of two months.[Harish Rautela v. State of Uttarakhand, 2020 SCC OnLine Utt 902, decided on 22-12-2020]


Suchita Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: Pratibha M. Singh, J., observed that:

Complaints of sexual harassment are initially filed with enormous reluctance. The power of the ICC to hold the enquiry and give a report ought to be within the scheme and the four corners of the statute itself.

In the instant petition, recommendations of the Internal Complaints Committee have been challenged as given in the report as well as further action taken by the Punjab National Bank on the basis of ICC’s report.

A complaint was filed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 against respondent 3 who was working as the General Manager of respondent 1 Bank, in Mumbai.

The above-stated complaint was referred to the ICC, which was constituted by the Bank, consisting of four members.

What was the analysis of ICC?

ICC came to the conclusion that the relationship between the petitioner and respondent 3 was based on personal grounds with mutual consent, and that the allegations of sexual, emotional and mental harassment were not substantiated by the petitioner.

Hence, the complaint against respondent 3 was rejected.

ICC made additional observations that the behaviour of the parties had been inappropriate and unbecoming of officers/employees of the Bank and accordingly recommended the Competent Authority to take suitable action against the petitioner and the respondent 3.

Based on the above report, a charge sheet was issued against the petitioner under Regulation 6 of the Punjab National bank Officer Employees’ (Discipline & Appeal) Regulations, 1977, hence in view of the same, petitioner has filed the instant petition.

Single Judge in his order had stayed the ICC’s recommendation and the consequent charge-sheet.

Later during the pendency of the petition, the petitioner became eligible to be considered for promotion. Petitioner stated that her promotion was being held up in view of the pendency of the present petition.

Thereafter, the Bank was directed to independently consider the petitioner’s candidature for promotion, however, it was directed that the same shall not be given effect to and kept in a sealed cover. Due to the lockdown, the matter could not be heard.

Analysis and Decision

Bench on perusal of the facts and circumstances of the matter raised the question as to whether the ICC could have, in the first place, made a recommendation directing the competent authority to take action?

ICC in its report had concluded that the allegations were not substantiated and the complaint was not made out. and further added remarks in regard to the conduct of the petitioner and respondent.

High Court made an observation in light of Section 13 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, that is the allegations of sexual harassment or any other form of harassment, as contemplated under the Act, are not proved before the ICC, the ICC can only recommend the employer to not take any action in the particular matter.

In the instant case, ICC has gone beyond its statutory mandate and has made observations that both the parties indulged in inappropriate/unbecoming conduct and indiscipline action against them.

Bench held that the above-stated recommendation by the ICC was beyond jurisdiction.

Moral Policing

‘Moral Policing’ is not the job of the Management or of the ICC.

With regard to Moral Policing, Court expressed that, any consensual relationship among adults would not be the concern of the Management or of the ICC, so long as the said relationship does not affect the working and the discipline of the organisation and is not contrary to the Rules or code of conduct binding on the said employees. It is only if a complaint is made of sexual harassment under the Act that the Management can constitute the ICC to enquire into the same.

Bench in view of the above discussion found the last paragraph of ICC’s report in the instant case to be commenting on the conduct of the parties which is against the statute and hence the same was not tenable and liable to be set aside.

In view of the above position, the fact that the Petitioner has become eligible for promotion means that the Bank would accordingly offer her promotion in accordance with her seniority, performance and merit, as per the applicable service rules. [Bibha Pandey  v. Punjab National Bank,  2020 SCC OnLine Del 1639, decided on 16-12-2020]

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Dr. DY Chandrachud, JJ has refused to review it’s verdict in B K Pavitra v Union of India, (2019) 16 SCC 129 wherein it had upheld the constitutional validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservations (to the Posts in the Civil Services of the State) Act 2018.

The Review Petition was filed on the ground that did not consider the binding principles laid down by a Constitution Bench of this Court in M. Nagaraj v Union of India, (2006) 8 SCC 212 and Jarnail Singh v Lachhmi Narain Gupta, 2018 (10) SCC 396 were not considered by the Court  in it’s May 10, 2019 judgment and that, in any case, the matter should have been referred to a Bench of a higher strength. It has also been urged, inter alia, that there is an error apparent in the findings of this Court on the retrospective application of the Reservation Act 2018 and the inapplicability of the ‘creamy layer’ concept to consequential seniority.

The Court, however, said that every ground urged in the review petitions has been addressed on merits in the judgment under review and that it did not find any error apparent on the record to justify interference

The Court had, in it’s May 10, 2019 verdict held,

“The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional.”

On the issue of creamy layer, the Court had held,

“The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A).”

The bench had, earlier this year, refused to entertain the applications challenging the validity of Karnataka’s 2018 reservation law, which granted reservation in promotion to employees belonging to SC and ST categories. The Court held that applications filed by a group of general category employees for applying ‘post-based quota’ and the principle of the creamy layer at entry-level in public employment were not maintainable. The maintainability of the MAs was challenged on the ground that though styled as an application for directions, they seek to lay a substantive challenge to the subsequent directions and clarifications issued by the State government in implementing the Reservation Act 2018.

[BK Pavitra v. Union of India, Review Petition (C) No. 1632 of 2019, order dated 30.07.2020]

Hot Off The PressNews

Review of performance of Government employees is a continuous process and the Central Government has since long been reviewing officials on grounds of performance and integrity.

      As per the information/data uploaded by the different Ministries/Departments/Cadre Controlling Authorities (CCAs) on Probity Portal, followed by the rectification requests made by some of them, a total of 32,305 Group ‘A’ and 83,205 Group ‘B’ Officers have been reviewed during the period July 2014 to October 2019. Of these, the provisions of Rule 56(j) of the Fundamental Rules and similar rules have been invoked against 117 Group ‘A’ officers, as also against 126 Group ‘B’ Officers.

This information was provided by the Union Minister of State (Independent Charge) Development of North-Eastern Region (DoNER), MoS PMO, Personnel, Public Grievances & Pensions, Atomic Energy and Space, Dr Jitendra Singh in written reply to a question in Rajya Sabha today.


Ministry of Personnel, Public Grievances & Pensions

[Press Release dt. 05-12-2019]

[Source: PIB]

Case BriefsHigh Courts

Patna High Court: A Division Bench of Amreshwar Pratap Sahi, CJ and Ashutosh Kumar, J., dismissed the petition as they did not find any fault with the decision of the High Court administration in not granting promotion to the petitioner to the higher judicial post of District Judge (entry-level).

The facts of the case was that the petitioner was considered for promotion from Civil Judge (senior division) to the post of District Judge (entry-level) in accordance with the Bihar Superior Judicial Service Rules, 1951 against the 65 per cent quota for the year 2012-2013, but he was not found fit for promotion, as he had failed in viva-voce test and also because of adverse entry in his ACR. An adverse entry in the ACR of the petitioner for the year 2009-2010 and for removal of which adverse remark, a representation was filed by the petitioner, which was rejected by the High Court and such decision was communicated to him in the year 2010 only. The aforesaid decision of the High Court was not challenged by the petitioner. A departmental proceeding was initiated against the petitioner in the year 2010, in which he was served with a punishment of censure. In another departmental proceeding in the year 2013, the enquiry report suggesting dropping of the charges was accepted by the High Court on its administrative side. As such, the case of the petitioner was again considered for promotion for following years of 2013-2014, 2014-2015, 2016-17 and 2017-18 but the Selection and Appointment Committee of the High Court thought it proper not to call the petitioner for interview as a departmental proceeding was under contemplation.

The Court held that after perusal of the entire service record of the petitioner, it is clear that the petitioner did not, in the past, conduct himself as an upright judicial officer and, therefore, the denial of promotion to him cannot be faulted with. Further, the Court failed to find any fault with the decision of the High Court administration in not granting promotion to him to the higher judicial post of District Judge (entry-level). [Prabhunath Prasad v. Patna High Court, 2019 SCC OnLine Pat 1839, decided on 24-10-2019]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Sanjeev Kumar, J. dismissed a writ petition which claimed promotion and challenged the government order which was made on the basis of serious allegations regarding the disproportionate acquisition of property.

Respondent 2 herein, on a complaint, conducted a secret verification and found that the petitioner had acquired huge assets both movable and immovable, which were disproportionate to his known sources of income. He registered an FIR against the petitioner for the commission of offence under Section 5(1)(e) read with Section 5(2) of the Jammu and Kashmir Prevention of Corruption Act, 2006. He also wrote a communication to respondent 1 (Administrative Secretary) for initiating departmental action under Jammu and Kashmir Civil Services Rules, 1956 against the petitioner. Respondent 1 by passing an order attaching petitioner with the Chief Engineer, PHE Kashmir. Petitioner was Superintending Engineer in a hydraulic circle, Kargil. He claimed that due to his seniority he was likely to be promoted to the post of Chief Engineer. Aggrieved by the said order, the petitioner challenged both the aforesaid communication as well as government order by way of this petition.

Petitioner claimed that the impugned communication issued by respondent 2 and the impugned government order by Administrative Secretary was illegal, arbitrary, mala fide and without any authority of law; and the same could not be sustained in law as they were not traceable to any provisions of Jammu and Kashmir Civil Services Rules, 1956. He also contended that no employee can be penalized only on the ground that an FIR for his misconduct was registered with the police or Anti-Corruption Bureau and pleaded that the impugned communication and order were only aimed to denude him from his right to seek promotion to the post of Chief Engineer. Respondent 1 denied the allegations of arbitrariness and mala fide and objected the writ petition on the ground that the impugned government order was fully justified as the allegation against the petitioner was serious and disproportionate to his known sources of income. He also claimed that the petitioner had been attached with the Chief Engineer not only because an FIR regarding his misconduct was pending investigation before respondent 2 but also because a full-fledged departmental enquiry against him was contemplated.

Court held that the department was competent to hold a departmental enquiry solely on the basis of the allegations made against an employee and this power of the employer was independent of the power of the police and the Anti Corruption Bureau to register FIR and investigate the allegations. The delinquent employee may be acquitted by the Court of law on finding that the prosecution could not prove his guilt, but he can be penalized in the disciplinary proceedings, which were decided on the basis of preponderance of probabilities. The Court also observed that as per Section 31 of Jammu and Kashmir Civil Services Rules, 1956 he could also be suspended, if the complaint against him of any criminal offence was under investigation or trial. Hence, respondent 1 had shown leniency and instead of suspending him had only attached him with the Chief Engineer. Therefore, it could not be said that the order by respondent 1 was without jurisdiction or without any sanction of law. Thus, the petition was dismissed for being devoid of merit.[Sarwan Singh v. State of J&K, 2019 SCC OnLine J&K 518, decided on 07-06-2019]

Case BriefsHigh Courts

Rajasthan High Court: Ashok Kumar Gaur, J. allowed the writ petition for the benefit of the Non-Practicing Allowance (NPA) as no reference was made of such circular to show that the person can be deprived of such benefits.

A petition was made by the petitioner praying for the grant of Non-Practicing Allowances (NPA) and also challenged the order by which the earlier order of granting NPA was withdrawn.

The facts of the case were that petitioner was sent on deputation as Deputy Director (AIDS) in Rajasthan State AIDS Control Society. The petitioner pleaded that he must be granted NPA and thus requested the authorities and submitted a representation to the Project Director to grant him NPA. The petitioner further submitted that the Society held its meeting in which a conscious decision was taken to grant NPA to those working in other National programmes but the same was not paid to him. Thus, this application.

 Abhay Bhandari, Senior Counsel for the petitioner submitted that he had to seek voluntary retirement which was accepted. It was further submitted that instead of granting him the actual benefit on the promoted post, the respondents had denied the actual benefit of the promotion to the petitioner only on account of the fact that the petitioner was promoted after he had sought voluntary retirement. The petitioner was also entitled to his fixation in the pay scale of Rs 10000-325-15200 on his promotion and only because the petitioner had sought voluntary retirement, the actual benefit could not have been denied to him.

Prakhar Gupta, Counsel for the respondent submits that the petitioner was not entitled to grant of NPA. It was submitted that since the petitioner was not getting any NPA prior to his posting in the Rajasthan State AIDS Control Society and as such he could not be given such benefit. Counsel further submitted that the NPA could only be given to the persons who were entitled as per the order issued by the Finance Department from time to time. Counsel submitted that the claim of the petitioner for grant of pay scale of Rs 10000-325-15200 on the promoted post was also not justified as the petitioner had sought voluntary retirement and while considering his case for promotion, he was not working and as such notional benefit is only to be given to the petitioner.

High Court opined the petitioner has been promoted as Senior Medical Officer and a particular pay scale was required to be given to the person who was promoted on the regular basis, the same cannot be denied to him only on account of the fact that he had sought voluntary retirement. The court further held that as there was no clause which prescribed that a person who has been promoted on regular line of promotions, can be deprived from the pay scale of the higher post. Thus, the order was made to the respondent to pay the NPA along with the actual benefit of pay revision of promotion within five weeks.[Avdhesh Gupta v. State of Rajasthan, 2019 SCC OnLine Raj 686, decided on 20-05-2019]

Case BriefsSupreme Court

Supreme Court: Upholding the validity of the Karnataka Extension of Consequential Seniority to Government Servants Promoted on the Basis of Reservation (to the Posts in the Civil Services of the State) Act 2018, the bench of UU Lalit and Dr. DY Chandrachud, JJ held,

“The Reservation Act 2018 is a valid exercise of the enabling power conferred by Article 16 (4A) of the Constitution.”

Backdrop

The Reservation Act 2018 was preceded in time by the Karnataka Determination of Seniority of the Government Servants Promoted on the Basis of the Reservation (to the Posts in the Civil Services of the State) Act 2002 . The constitutional validity of the Reservation Act 2002 was challenged in B K Pavitra v Union of India, (2017) 4 SCC 620 wherein it was held that Sections 3 and 4 of the Reservation Act 2002 to be ultra vires Articles 14 and 16 of the Constitution on the ground that an exercise for determining inadequacy of representation, backwardness and the impact on overall efficiency had not preceded the enactment of the law. Such an exercise was held to be mandated by the decision of a Constitution Bench of this Court in M Nagaraj v Union of India, (2006) 8 SCC 212. The legislature in the State of Karnataka enacted the Reservation Act 2018 after this Court invalidated the Reservation Act 2002 in B K Pavitra I. The grievance of the petitioners is that the state legislature has virtually re-enacted the earlier legislation without curing its defects.

On whether the basis of the decision in B K Pavitra I has been cured

Holding that in adopting recourse to sampling methodologies, the Committee cannot be held to have acted arbitrarily, the Court said that the methodology which was adopted by the Ratna Prabha Committee has not been demonstrated to be alien to conventional social science methodologies.

It was hence, held,

“once an opinion has been formed by the State government on the basis of the report submitted by an expert committee which collected, collated and analysed relevant data, it is impossible for the Court to hold that the compelling reasons which Nagaraj requires the State to demonstrate have not been established. Even if there were to be some errors in data collection, that will not justify the invalidation of a law which the competent legislature was within its power to enact.”

On selection based on “merit”

On the assumption that awarding opportunities in government services based on “merit” results in an increase in administrative efficiency, the Court said,

“administrative efficiency is an outcome of the actions taken by officials after they have been appointed or promoted and is not tied to the selection method itself. The argument that one selection method produces officials capable of taking better actions than a second method must be empirically proven based on an evaluation of the outcomes produced by officials selected through both methods.”

The Court also said that the arguments that attack reservations on the grounds of efficiency equate “merit” with candidates who perform better than other candidates on seemingly “neutral” criteria, e.g. standardised examinations. Candidates who score beyond a particular “cut-off point” are considered “meritorious” and others are “non-meritorious”. However, this is a distorted understanding of the function “merit” plays in society. It, hence, said,

“the providing of reservations for SCs and the STs is not at odds with the principle of meritocracy. “Merit” must not be limited to narrow and inflexible criteria such as one‘s rank in a standardised exam, but rather must flow from the actions a society seeks to reward, including the promotion of equality in society and diversity in public administration.”

On the issue of creamy layer

Accepting the submission of the State of Karnataka that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status, the Court held that the concept of creamy layer has no relevance to the grant of consequential seniority. It said,

“The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A).”

On retrospectivity of the Act

Sections 3 and 4 of the Reservation Act 2018 came into force on 17 June 1995. The other provisions came into force at once as provided in Section 1(2). Section 4 stipulates that the consequential seniority already granted to government servants belonging to the SCs and STs in accordance with the reservation order with effect from 27 April 1978 shall be valid and shall be protected.

The Court, hence, held,

“The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional.”

Therefore, the benefit of consequential seniority has been extended from the date of the Reservation Order 1978 under which promotions based on reservation were accorded.

[BK Pavitra v. Union of India, 2019 SCC OnLine SC 694, decided on 10.05.2019]

Case BriefsHigh Courts

Kerala High Court: The Division Bench of V. Chitambaresh and A.M. Babu, JJ. allowed the appeal filed by a company against the order of learned Single Judge granting promotion to its retired employee on the ground that he had the requisite appraisal rating for the same.

Respondent herein had retired from the services of the appellant as an Executive in the year 2003. His plea was that he was entitled for promotion as Assistant Manager in the year 1997. Case of the appellant company was that there were no vacancies to the post of Assistant Manager at that time for the respondent to be promoted; and at best, he was entitled to stagnation promotion as per Clause 14(c) of Promotion Policy.

The Court noted that as per the aforesaid Promotion Policy, respondent (an engineering diploma holder) should have had a consistent record of performance (i.e., score of 150 and above) for a period of seven years in order to be considered by the Departmental Promotion Committee. However, he had a consistent record of performance only for three years during the period from 1994-95, 1995-96 and 1996-97. His performance dipped to a score below 150 in the year 1998-99. Thus, evidently, he was not eligible for stagnation promotion in the post of Executive as per Clause 14(c) of Promotion Policy.

It was observed that in view of a clear mandate in Clause 14 (pertaining to stagnation promotion) of Promotion Policy, the learned Single Judge had erred in granting promotion by relying on Clause 9 of the said policy which was applicable to regular promotion.

In view of the above, the impugned Judgment was set aside holding that respondent did not have a consistent record of good performance for seven years in order to be eligible for promotion.[Hindustan Newsprint Ltd. v T.C. Mani, 2019 SCC OnLine Ker 1031, Order dated 21-03-2019]

Case BriefsHigh Courts

Uttaranchal High Court: A Bench of Manoj K. Tiwari, J. while allowing the petition quashed the order of the Chief Education Officer.

In the present matter, the petitioner was a Class-IV employee, serving in a Government aided minority institution. He was appointed in the year 2002 on the post of Night Chowkidar and having been completed 17 years of continuous satisfactory service, and being the seniormost Class-IV employee, he was eligible for promotion to Class-III post of Clerk. Therefore, the petitioner through learned counsel Mr Alok Mehra, approached the Court being aggrieved by the communication of the Chief Education Officer, Almora where the petitioner was declared ineligible for promotion only on the ground that he was appointed on the post of Night Chowkidar.

The Court while quashing the said order of the respondents held that, “Promotion is governed by Statutory Rules and every candidate, who is eligible in terms of the Rules, has a Fundamental Right to be considered for promotion against available vacancies. Therefore, imposition of new condition regarding eligibility by the Chief Education Officer, which has the effect of taking away right to be considered for promotion to the petitioner, cannot be sustained”.

Respondents were further directed to consider petitioner’s claim for promotion along with other eligible persons.[Lal Singh Bisht v. State of Uttarakhand, 2019 SCC OnLine Utt 229, Order dated 07-03-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The bench of Sunita Gupta, Member (J), Lt Gen Philip Campose, Member (A), allowed an application praying for revision of pension in accordance with the last rank held before retirement.

In the pertinent matter, the applicant in pursuance of the circular by the Government of India (GoI) approached the Tribunal, wherein the circular clarified that, 10 months continuous service in the last rank held is not required for grant of pension in such rank. They relied on Thiagrajan v. Union of India, O.A. No. 93 of 2014, where the ten months were waived-off and the Tribunal opined that “pension cannot be deprived to an individual to a rank for which he has already rendered his service and that the applicant has earned his pension in the rank of JWO already, and therefore, is entitled to be paid pension in the rank of JWO. Even if, for some reason, such a pension is found to be less, the applicant is entitled to receive the highest pension he earned already...

The respondent conceded that the requirement of holding the last rank of 10 months before retirement has been dispensed with in keeping with the circular and further contended that they are correct in giving pension to the applicants on the lower rank as it is financially more beneficial.

The Tribunal held that the argument of the respondents, where a junior promoted to a senior rank should be pegged at a pension of his last but one rank, is fallacious, while placing reliance on D.S. Nakara v. Union of India, 1983 (1) SCC 305. Further on the method of calculating the exact pension, relied on the explanation in P. Gopalakrishnan v. Union of India, the complete import and implication of Circular 430 dated 02-02-2009 Regulations for the Air Force Part 1, Ministry of Defence (MoD) letter dated 07-06-1999 and came to the conclusion that “the basis of calculation being pursued in the instant case was detrimental for the pension of petitioner..”. And it further directed the respondents to calculate the pension based on the last held rank by him before retirement and arrears to be paid accordingly.[Dhanushkodi Rajarajan v. Union of India, 2019 SCC OnLine AFT 4, Order dated 20-02-2019]

Case BriefsSupreme Court

Supreme Court: In a huge relief to Central Armed Police Forces (CAPF), the bench of RF Nariman and MR Shah, JJ has upheld the Delhi High Court verdict which had directed the Central Government to grant Non-Functional Financial Upgradation (NFFU) to CAPFs who are a part of Organized Group “A” Services.

On the object behind granting NFFU

In order to overcome the stagnation problems, the 6th Pay Commission recommended NFFU to all Group “A” Officers in various Organized Group “A” Services. The purpose of granting NFFU was to give relief to Group “A” Officers facing the problem of stagnation as fall­back option when regular promotions do not come into various factors.

On non-compliance of two attributes out of six attributes listed in the Monograph of 1993

According to the Monograph itself, there may be certain “minor deviations” from the attributes listed therein and also to the extent wherein it states that even if the listed criteria are fulfilled, the same would not automatically   confer the status of an Organized Group “A” Service. Thus, fulfilling/compliance of the attributes shall not be given too much weightage while deciding on the status of CAPFs.

On the Appropriate authority to define “Organised services”

The Central Pay Commission, as such, is not authorised to define “Organized Services” or to grant such status to any service but only relies on the information submitted to it by the various Departments. It appears from the material on record that right from 1986 onwards, in various Monographs CAPFs were included in the list of Group “A” Central Civil Services.”

The Court, however, noticed that the Government took ‘U’ turn and a stand was taken that CAPFs are not Organized Group “A” Central Services and, therefore, on the basis of such a stand, the 6th Pay Commission did not recommend NFFU to CAPFs. It was, hence, held tha:

“merely because the 6th Pay Commission did not recommend to grant NFFU to CAPFs – Group “A” Officers in PB­III and PB­IV, the Group “A” Officers in PB­III and PB­IV cannot be denied the NFFU, which otherwise is granted to all the Officers of Group “A” Central Civil Services.”

[Union of India v. Sri Harananda, 2019 SCC OnLine SC 126, decided on 05.02.2019]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Pramath Patnaik, J., dismissed a writ petition filed by the petitioner, whereby he sought directions upon the respondent to grant him promotions and benefits of Assured Career Progression as had been granted to one of his colleagues Akhouri Shrawan Prasad. 

The main issue that arose before the Court was whether the respondent authorities were liable for discriminating the petitioner with his colleagues.

The Court observed that the petitioner and the employee with whom the petitioner is claiming discrimination had joined the services in the same year. The petitioner was concerned with the fact that Mr Shrawan had been granted more promotions, however from the record it was crystal clear that the petitioner was granted promotion to Selection Grade Assistant and given the post of Head Assistant before the said Mr Akhouri Shrawan Prasad and even on the date of retirement, the basic salary of the petitioner was higher than that of Mr Akhouri Shrawan Prasad. Further, it was observed that promotion cannot be claimed as a matter of right, rather only consideration for promotion to a particular post can be asserted as a right. 

The Court held that the petitioner was duly considered for promotions time and again during the course of his service and he had failed to establish that the respondent authorities had ever deprived him of his right to be considered for promotion to a particular post. Resultantly, the petition was dismissed being devoid of merits.[Hira Lal Ram v. State of Jharkhand,2018 SCC OnLine Jhar 1550, order dated 05-11-2018]

Case BriefsHigh Courts

Punjab and Haryana High Court: A 2-Judge Bench comprising of Mahesh Grover and Rajbir Sehrawat, JJ., addressed a petition filed against an order passed by Central Administrative Tribunal, Chandigarh where an Original Application filed by petitioner was dismissed and his prayer for re-consideration of his suitability for the Select List for promotion to the post of IAS was rejected.

Facts of the case were such that the petitioner had joined State Civil Service in 1994. According to the Indian Administrative Service (Appointment by Promotion) Regulations, 1955, a select list for promotion of IAS had to be prepared every year but for 2011 the select list was not created. When in 2015 the select list was created, petitioner’s name was 10th in the list but he was not considered for promotion. It is to be noted that a candidate who had expired was also considered for promotion and for the same petitioner had filed a representation before the respondents which was rejected.

Petitioner while contending brought before the Court the fact that his grade was ‘outstanding’ but the same was downgraded to be ‘very good’ and this downgrading of petitioner was arbitrary. Whereas respondent negated the jurisdiction of this Court by stating the decisions of Select Committee as sacrosanct which the court or tribunal has no authority to question and would not come under judicial review. It is upon the Select Committee as to how to make a selection and they can give their own grades not necessarily the grades given by ACRs.

The High Court after perusing provisions of the rules, regulations and the guidelines governing the appointment and the assessment for appointment was of the view that guidelines stated that reasons are mandatory to be recorded when the candidate is considered in a subsequent year with the difference in assessment from the previous year. Court had rejected the contentions of respondents and observed the assessment was devoid of rationality and was arbitrary. Therefore, this petition was allowed and the Tribunal’s order was set aside. [Satya Pal Arora v. CAT,2018 SCC OnLine P&H 1731, decided on 15-02-2018]

Case BriefsHigh Courts

Allahabad High Court: A Single Judge Bench comprising of Ashwani Kumar Mishra, J., disposed of a petition filed with a claim of promotion under U.P. Sub-Inspector and Inspector (Civil Police) Service (Second Amendment) Rule, 2016.

This dispute was related to promotion which went before Supreme Court from where the same was remanded to Division Bench of the High Court. It is the order passed by Division Bench which is in question in this petition where U.P. Police Recruitment and Promotion Board was directed to consider the claim of the petitioner. The Petitioner was appointed as a constable in furtherance of which he was discharging his duties on the said post. Petitioner submitted that his conduct was satisfactory and till date, no complaint was made against him. Petitioner prayed for promotion to a position of Sub-Inspector as per amended Rules of 2013 and 2015. Whereas Additional Chief Standing Counsel submitted that the U.P. Sub-Inspector and Inspector (Civil Police) Service (Second Amendment) Rule, 2016 was amended for the matter of promotion and thus claim of petitioner does not come under the above-mentioned rules and is liable to be dismissed.

In light of the above discussion, High Court disposed of this writ petition with a direction to the respondent for considering the claim of the petitioner for promotion to the post of Sub-Inspector. [Dilip Kumar v. State of U.P.,2018 SCC OnLine All 1551, Order dated 26-09-2018]

Case BriefsHigh Courts

Madhya Pradesh High Court: A Single Judge Bench comprising of Sanjay Dwivedi, J., allowed a petition filed by an employee against the decision of the employer whereby the order of his pay upgradation was withdrawn.

The petitioner was aggrieved by the decision of his employer to withdraw the benefits of pay upgradation. The decision was taken by the employer under Clause 13 of the concerned circular, whereby if an employee refuses to accept the promotion along with pay upgradation, then in such a case, the benefits of his pay upgradation are also to be withdrawn. The petitioner challenged the said decision wherein his pay scale was revised, reduced and refixed at a lower grade.

The High Court considered the submissions made on behalf of the parties, and referring to earlier decisions of division bench on the same issue, held that such decision was unsustainable. It was observed, merely because an employee has refused to accept the promotion, that does not deprive him to enjoy the benefit of upgradation of pay granted to him for completing certain period in service. The analogy as contained in Clause 13, mentioned above, was disapproved of by the Court. Thus, holding the decision to be unsustainable, it was set aside. The Court ordered to quash any recovery, if made, from the employee in furtherance of the said decision. The petition was accordingly disposed of. [Raspal Singh Dangi v. State of M.P.,2018 SCC OnLine MP 401, dated 25-06-2018]