Uttarakhand High Court
Case BriefsHigh Courts

   

Uttaranchal High Court: The Division bench of Vipin Sanghi, C.J., and R.C. Khulbe, J., had held that merely because the communication sanctioning a post does not indicate the promotion rules, does not mean that there are no Rules framed or applicable for promotion, requiring minimum service in the feeder cadre.

Facts:

The appeal was preferred by the appellants after obtaining leave, since they were not parties to the writ proceedings, wherein the impugned order was passed by the Single Judge on 11-08-2017. The writ petitioners are respondents in this instant appeal preferring a writ petition assailing the order dated 09-09-2016 passed by the respondent authority, whereby the respondents were promoted to the post of Assistant Accounts Manager in the Uttarakhand Forest Development Corporation.

The appellants have assailed the impugned order dated 11-08-2017 on the ground that the Court wrongly proceeded on the premise that, for promotion to the post of Assistant Accounts Manager, the persons working in the feeder post should have substantive service of at least 7 years, as a condition of eligibility. According to the appellants there was no minimum qualifying service required.

Arguments:

The counsel for appellant contended that prior to bifurcation of the State of Uttarakhand from the State of Uttar Pradesh, in the Uttar Pradesh Forest Development Corporation, from which the respondent corporation has been carved out, the service conditions were governed by Regulations framed in the year 1985. In the said Corporation's promotion Rules, the minimum required service of 7 years was prescribed in the feeder cadre. However, upon the creation of the State of Uttarakhand, the respondent was created in the year 2001. According to the appellants, after 2001, the 1985 Regulations of the Uttar Pradesh Forest Development Corporation were no longer applicable. He further submitted that on 06-06-2007, a completely new cadre of officers was created in the respondent corporation.

The counsel finally submitted that even the communication did not clearly indicate as to what were the promotion rules. Further, the mandatory requirement of experience must be deemed to have been waived.

The counsel for the respondent corporation drew attention to Sections 67 and 74 of the Uttar Pradesh Reorganisation Act, 2000 (‘UP Reorganization'), which led to the formation of the State of Uttarakhand. He submitted that as the corporation has carved out from Uttar Pradesh Forest Development Corporation it continues to operate in the State of Uttarakhand.

The counsel placed his reliance on Section 74 of the UP Reorganisation Act argued that the conditions service of persons serving in connection with the affairs of the State, could not be alerted to their disadvantage, and they continued to operate as they were operating prior to bifurcation of the State. He submits that no previous approval was obtained by the Central Government to remove the minimum requirement.

Observation and Analysis:

The Court found no merit in the argument that there was any requirement of any minimum qualifying years of service.

Further it was held that merely because the order sanctioning the posts did not indicate the promotion Rules, does not mean that there was no Rule framed or applicable for promotion.

Hence, the respondent corporation was directed to fill up the vacancies in the cadre and the special Appeal was dismissed.

[Krishna Kunwar Singh Dewari v. Kripal Singh, Special Appeal No. 682 of 2018, decided on 19-07-2022]


Advocates who appeared in this case :

Counsel for Appellants: Mr. Bhagwat Mehra, Advocate

Counsel for Respondents: Mr. Abhijay Negi, Advocate

Mr. K.N. Joshi, Deputy Advocate General

Mr. V.K. Kapruwan, Advocate


https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=rC8SUFuyEFsvB5V61cXUrElu1MmZWPXzCwheqkAW3XaTdJ8LLlyIa%2B%2FGilaNnsw2&caseno=SPA/682/2018&cCode=1&appFlag=

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

   

Jammu and Kashmir and Ladakh High Court: While deciding the question raised in the instant petition that, whether the classification made on the basis of educational qualification for promotion, offends Arts. 14 and 16 of the Constitution; the Bench of Sanjeev Kumar, J., went on to reiterate the core principles of the concerned constitutional provisions and held that there should be left no doubt in the mind of anybody that the classification on the basis of educational qualification for promotion is permissible in law and does not offend Arts.14 and 16 of the Constitution.

Facts of the case: The petitioners, serving in Sher-i-Kashmir Institute of Medical Sciences Soura, Srinagar (hereinafter ‘SKIMS') as Staff Nurses, claimed to have rendered their services for the last 27 years. The petitioners were Matriculates and possessed 3 years Diploma in General Nursing and Midwifery. In 1998, SKIMS promulgated the Sher-i- Kashmir Institute of Medical Sciences Subordinate Services Recruitment Rules 1998 (hereinafter ‘1998 Rules') as per which no person was eligible for appointment or promotion to any post in any class, category or grade in the service unless he possessed the qualification as laid down in Schedule II of the Rules.

Later in 2014 via Government Order No.75-SKIMS of 2014, sanction was accorded to the modification of recruitment rules for various categories of staff working in the Institute. Regarding the post of Senior Staff Nurse, the afore-stated Government Order stated that post is to be filled up 100% by promotion from Staff Nurses possessing B.Sc. Nursing or M.Sc. Nursing degrees.

Aggrieved by the prescription of minimum qualification of B.Sc. Nursing provided for promotion to the post of Sr. Staff Nurse, the petitioners challenged the same on the ground that the classification made by the respondents between a Staff Nurse possessing three years Diploma in General Nursing and Midwifery and a Staff Nurse possessing the qualification of B.Sc. Nursing, violates Arts. 14 and 16 of the Constitution and therefore the same is not permissible.

Contentions: The petitioners contended that for about 27 years, they entertained a legitimate expectation that they would be promoted to the post of Sr. Staff Nurse in due course but, because of the impugned Government Order, laying down a modified criteria for the post of Sr. Staff Nurse, the petitioners have been deprived of their right to promotion for all times to come.

Per contra, the respondents relied on State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19, wherein classification on the basis of higher qualification being permissible under law, was settled by the Supreme Court.

Observations: Perusing the issue raised by the petitioners, the Court observed that the issue is no longer res-integra as the same has been settled by the Supreme Court in plethora of cases. The Court, however, deemed it appropriate to reiterate the interpretation of Arts. 14 and 16 as laid down by the Supreme Court from time to time-

  • Arts. 14 and 16 do not permit the State to treat un-equals as equals, for that is not the spirit of the principle of equality envisaged under the Constitution.

  • Art. 14 prohibits class legislation and not reasonable classification. To pass the Art. 14 test, classification needs to meet only two requirements: intelligible differentia and rational/ reasonable nexus between the intelligible differentia and object of the classification sought to be achieved.

  • The Court referred to the landmark decision in E.P. Royappa v. State of T.N., (1974) 4 SCC 3, wherein Justice P.N. Bhagwati had delineated the concept of permissible classification under Art. 14 stating that, “Art. 14 is the genus while Art. 16 is a species, Art. 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination”.

  • The Court considered the arguments raised by the respondents and agreed with them that the issue of classification on the basis of educational qualification in the matter of promotion, was set at rest by the Supreme Court in the afore-stated Triloki Nath Khosa case.

Decision: With the afore-stated observations, the Court dismissed the petitions and held that prescription of higher qualification like the qualification of B.Sc. Nursing/M.Sc. Nursing for promotion to the post of Senior Staff Nurse, is essential for efficient discharge of duties of a higher post. Thus, the respondents can surely prescribe higher technical qualification for the purpose of promotion.

The Court also held that a Staff Nurse possessing qualification of three years Diploma in General Nursing and Staff Nurses possessing qualification of B.Sc. Nursing, cannot be on par and therefore, are unequal because of their qualification. Which means that it would not be obligatory for respondents to treat these two unequals as equals.

[Hanifa Deva v. SKIMS, 2022 SCC OnLine J&K 528, decided on 05-07-2022]


Advocates who appeared in this case :

Arif Sikandar, Advocate, for the Petitioners;

M. A. Chashoo, AAG, Advocate, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief

AAR GST
Case BriefsTribunals/Commissions/Regulatory Bodies

   

Appellate Authority for Advance Ruling, Punjab: Arun Narayan Gupta Chief Commissioner, CGST Commissionerate, and Kamal Kishor Yadav, Commissioner of State Tax held that the distribution of match tickets to related persons for the promotion of business attracts GST.

The factual background of the case

The appellant entered into a Franchise Agreement in April 2008 with the Board of Control for Cricket in India (BCCI) to establish and operate a cricket team in the Indian Premier League (IPL) under the title of ‘Punjab Kings’. The Appellant intended to distribute match tickets free of cost as a goodwill gesture for the promotion of business. These tickets were distributed without any consideration by the Appellant. The Appellant approached the Authority for Advance Ruling, Punjab (AAR Punjab) to clarify the treatment of GST liability on the supply of complimentary tickets.

AAR Punjab held the act of Appellant of issuing complimentary tickets displayed an act of forbearance. Aggrieved with the judgment the Appellant filed an appeal under Section 99 of the Punjab GST Act and Central Good and Services Act, 2017 (CGST) before the Appellant Authority of Advance Ruling to seek advance ruling for the following:

  • Whether the activity of providing “Complimentary tickets” by the appellant falls within the definition of supply under the Punjab GST Act, 2017 /CGST Act, 2017?

  • Whether the appellant would be required to pay tax on such complimentary tickets?

Analysis and Decision

The Bench stated that the two key elements that are required to be present for any activity or transaction to fall within the ambit of supply are “consideration” as well as “furtherance of business”. Therefore, the Bench opined that if any activity or transaction mentioned in Schedule II of the CGST the same has to fulfill the two key parameters i.e., presence of “consideration” as well as “furtherance of business” for it to be treated as supply under the Act.

The Bench observed that even for the consideration in the form of payment in kind, it should not be vague or illusory and there should be an element of reciprocity, and the expression “exempt supply” as defined under the CGST means the supply of any goods or services or both which attracts nil rate of tax or which may be wholly exempt from tax under Section 11, or under Section 6 of the Integrated Goods and Services Tax Act, 2017 and includes the non-taxable supply.

Therefore, the Bench held that the activity of providing complimentary tickets is an exempt supply, and there shall be no availment of Input Tax Credit according to Section 17 (2) of the CGST.

Hence, complimentary tickets provided by the Appellant fall within the ambit of supply on account of Schedule I of the CGST, and the Appellant would be liable to pay tax on the same.

[KPH Dream Cricket Pvt. Ltd., 01/AAAR/CGST/KPH/2022, decided on 01-06-2022]

Gujarat High Court
Case BriefsHigh Courts

Gujarat High Court: Biren Vaishnav, J. allowed a petition which was filed praying for a direction to quash and set aside the Seniority List of Multi-Purpose Health Workers (male).

The Gujarat Panchayat Services Selection Board, issued an advertisement for recruitment to the post of Multi-Purpose Health Worker (male). The petitioner applied on-line. He was placed at serial no. 677, considering his written test marks at 55.80 plus additional marks for sports at 2.79 making a total merit secured as 58.59. The Rajkot District Panchayat Services Selection Board informed the petitioner that he would not be entitled to the additional 2.79 marks for sports as the certificate was of the school and the merit would be considered only as 55.80. Candidates who were selected along with the petitioner were offered appointments. Letter addressed by the petitioner to the respondent 3 indicating that even if his marks for the sports i.e. 2.79 marks are not considered, he would otherwise be on merit, and therefore, he would not insist on pressing for the additional marks as he would otherwise fall within the merit for preference for appointment. He was not issued an order of appointment and it was only on 08-07-2013 that the petitioner was offered appointment which he accepted and joined on 09-07-2013. Based on this date of joining, the petitioner is placed at merit seniority No. 184 in the seniority list which was under challenge.

The Court noted that it was undisputed that the first offer of appointment to the petitioner as well as to the candidates who in the seniority list of 31-08-2018 at serial nos. 105 and 106 were offered appointments together with the petitioner on 01-10-2012. merit was at 985 and 1053 respectively. Pursuant to the letter of 03-10-2012, the petitioner immediately on 09-10-2012 had offered himself for appointment minus the Certificate of Cricket categorically pointing out to the authorities that his name otherwise also falls within the merit. It took nine months and eight days for the respondents to react and respond and offered an appointment to the petitioner only on 08-07-2013 and the petitioner joined on 09-07-2013. The delay, therefore, cannot be attributed to the petitioner who had immediately within four days offered himself without insisting for the Certificate of Cricket and on consideration of the merit at 55.80 minus the score of 2.79 percent of cricket. Holding the petitioner responsible for the delay in joining is misconceived.

The Court reiterated Supreme Court’s observation in M.C.D. v. Veena, (2001) 6 SCC 571 where when found that even the OBC certificate was not produced, the respondent therein had been considered in the general category, would apply to the facts of the present case. The petition was allowed holding that consequential effect of quashing the placement at 184 of the petitioner would entitle him for being promoted to the post of Multi-Purpose Health Supervisor with effect from 08-03-2019 with all consequential benefits including arrears of pay.

[Bhalodiya Ravikumar Jaynatilal v. State of Gujarat, 2022 SCC OnLine Guj 760, decided on 16-06-2022]


Advocates who appeared in this case :

Mr KB Pujara, Advocate, for the petitioner 1;

Mr DG Shukla, Advocate, for the Respondent 4;

Mr HS Munshaw, Advocate, for the Respondent 2;

Mr Kurven Desai, AGP, for the Respondent 1, 3.


*Suchita Shukla, Editorial Assistant has reported this brief.

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: In a case relating to qualification to be appointed as a professor at Vinoba Bhave University, Anubha Rawat Choudhary, J, considering that the respondent had completed 16 years of working as a Lecturer/Reader and that there was considerable progress in work of the research student whom she had been guiding, held that respondent had the required experience of guiding research at Doctoral level as on the cut off date, even though the concerned research student did not receive Ph.D degree within the stipulated time.

The respondent obtained Ph.D degree on 09.11.1985 after which she guided a student for research who was enrolled in the year 1987 and the Ph.D work was to be completed in 4 years and a further extension of 2 years time was to be given and the same expired in 1992. The student got re registered on 14.12.1996. On the cut off date i.e. on 22.09.1995, no student was enrolled for research under the respondent and the student who was enrolled in the year 1987 did not complete his research work within the stipulated time and was not granted Ph.D although the papers were published and were presented in the conferences. It was, hence, contended that the respondent was not duly qualified on the cut-off date.

Respondent, on the other, argued that as per the statute for time bound promotion of teachers under the Bihar Universities Act, a teacher was entitled to be promoted after 16 years of continuous service to the post of professor as a time bound promotion, subject to concurrence of the University Service Commission. She further contended that though the candidate was not conferred the Ph.D degree, but the thesis was submitted, which indicated that she had guided her in the matter of research.

Reliance was placed on Patna High Court’s decision in Dr. Kalpnath Singh v. the Bihar State University Service Commission, CWJC No. 2014 of 1997 wherein it was held,

“… while guiding research at doctoral level starts from the date of registration of the students for Ph. D. Degree, it has got nothing to do with publication of results of Ph. D. Degree of such students. It is the experience during the intervening guiding period at the doctoral level, which is the requirement to count experience of a Reader for promotion to the post of University Professor and the same has got nothing to do after the student obtained Ph. D. Degree on passing the examination.”

The Court, hence, held that Jharkhand Public Service Commission’s contention that the respondent did not have the requisite experience of guiding a student for research, was devoid of any merits and hence dismissed the review petition.

[Jharkhand Public Service Commission v. Vanmala Choudhary, 2022 SCC OnLine Jhar 494, decided on 13.06.2022]


Advocates who appeared in this case :

Sanjay Piprawall, Advocate, for the petitioner;

I. Sen Choudhary, Advocate, for the University;

Siddharth Roy, Advocate, for the State.

SCC Part
Cases ReportedSupreme Court Cases

Civil Procedure Code, 1908 — Or. 41 Rr. 4 & 33, Ss. 96, 100 and Or. 20 R. 18 — Partition suit — Appeal — Non-appealing plaintiffs: Some of plaintiffs whose claim was denied by trial court and who had not challenged same by way of appeal before first appellate court, held, are entitled to relief in second appeal. In a partition suit, all parties stand on the same pedestal and every party is a plaintiff as well as a defendant. Position of plaintiff and defendant can be interchangeable. Trial court could grant relief even to non-appealing plaintiffs and make an adverse order against all defendants and in favour of all plaintiffs. Merely because trial court had not granted relief in favour of some of plaintiffs, would not come in the way in High Court allowing their claim. [Azgar Barid v. Mazambi, (2022) 5 SCC 334]

Constitution of India — Art. 226 — Maintainability of writ petition — Proceedings under SARFAESI Act: If proceedings are initiated under the SARFAESI Act and/or any proposed action is to be taken and the borrower is aggrieved by any of the actions of the private bank/bank/ARC, borrower has to avail the remedy under the SARFAESI Act and no writ petition would lie and/or is maintainable and/or entertainable. [Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir, (2022) 5 SCC 345]

Constitution of India — Arts. 32 and 226 — Issue as to legislative competence — Maintainability: Matter already standing determined by a Constitution Bench of the Supreme Court. [M.C. Mehta v. Union of India, (2022) 5 SCC 291]

Constitution of India — Sch. VII List I Entry 84 and List II Entry 51: State Legislature, held, has no legislative competence to levy tax on waste liquor after distillation which is not suitable for human consumption. [State of Orissa v. Utkal Distilleries Ltd., (2022) 5 SCC 326]

Criminal Procedure Code, 1973 — S. 190(1)(b) r/w Ss. 173, 193 & 319 and Ss. 161 & 164 — Taking cognizance of offence on basis of police report — Protest petition: Even after process has been issued against some accused on one date, held, process can still be issued by the Magistrate against some other person against whom there is some material on record, but whose name is not included as accused in the charge-sheet. Lastly, Magistrate or court need not wait till stage of S. 319 CrPC to exercise such power. [Nahar Singh v. State of U.P., (2022) 5 SCC 295]

Foreword to a book: A foreword to the book “Competition Law” by Cyril Shroff. Foreword to competition law by Cyril Shroff, (2022) 5 SCC (J-25)]

Foreword to a book: A foreword to the book “Criminal Law and Criminal Justice: An Introduction to the Writings by Justice M.N. Venkatachaliah, Foreword to Criminal Law and Criminal Justice: An Introduction to the Writings by Justice M.N. Venkatachaliah, (2022) 5 SCC (J-22)]

Foreword to a book: A foreword to the book “Transgenders and the Law” by Justice A.K. Sikri. Foreword to transgenders and the law by Justice A.K. Sikri, (2022) 5 SCC (J-28)]

Government Contracts and Tenders — Formation of Government Contract — Modes of entering into a Government Contract — Public Auction/Tender — Award/Non-award of contract — Judicial review: Author of the tender document, reiterated, is taken to be the best person to understand and appreciate its requirements. Thus, if the interpretation of such author is manifestly in consonance with the language of the tender document or subserving the purchase of the tender, the Court would prefer to keep restraint. Further, the technical evaluation or comparison by the Court is impermissible. Thus, even if the interpretation given to the tender document by the person inviting offers is not as such acceptable to the constitutional court, that, by itself, would not be a reason for interfering with the interpretation given, so long as such interpretation is not arbitrary or whimsical. [Agmatel India (P) Ltd. v. Resoursys Telecom], (2022) 5 SCC 362]

Petroleum and Natural Gas Regulatory Board Act, 2006 — S. 16 — Noti. dt. 12-7-2010: Directions regarding adjudication of pending and new applications by Board i.e. post S. 16 coming into force, issued. [Petroleum & Natural Gas Regulatory Board v. Indraprastha Gas Ltd., (2022) 5 SCC 292]

Petroleum and Natural Gas Regulatory Board Act, 2006 — S. 16 r/w S. 17 — “Deemed authorisation” clause under S. 16 proviso — Scope of — Deemed authorisation: If one reads S. 16 proviso in isolation, the inference undoubtedly would be that every entity which had started laying and building pipelines and networks was the recipient of the deemed authorisation clause i.e. the provision sought to retrospectively regularise activities by all entities, however, such a plain and facial construction is unacceptable. Thus held, S. 16 proviso is not unqualified. The “deemed authorisation” clause is subject to other provisions of Ch. IV and S. 17 is one such provision under Ch. IV. Further, the scheme of S. 17 intrinsically classifies the two i.e. Central Government authorised entities, and others and the underlying basis for this statutory classification is that only entities which had been cleared or authorised by the Central Government prior to the coming into force of the Act were deemed to have authorisation under the Act, and therefore, had to furnish certain details. As with regard to the others i.e. entities not authorised by the Central Government, fresh applications were necessary which were to be assessed by the Board on a case-by-case basis and in accordance with uniform standards. [Adani Gas Ltd. v. Union of India, (2022) 5 SCC 210]

Service Law — Promotion — Criteria/Eligibility — Length of service/qualifying service — Time-bound promotion — Entitlement to: Services rendered by employee on work-charge basis may considered for computing 12 yrs of service for grant of time-bound promotion (TBP). [State of Maharashtra v. Madhukar Antu Patil, (2022) 5 SCC 322]

Service Law — Promotion — Criteria/Eligibility — Qualification/Experience — Classification based on nature of experience — Validity of: Policy decision to provide incentive marks for specified work experience inside the State and not for such work experience from some other State due to work pattern peculiarities and socio-economic/geographical peculiarities of the State, held, not arbitrary. Courts should be slow in interfering with policy matters unless the policy is found to be palpably discriminatory and arbitrary. [Satya Dev Bhagaur v. State of Rajasthan, (2022) 5 SCC 314]

Service Law — Regularisation — Entitlement to regularization: In this case, respondents were appointed on contractual basis for period of 11 months (which was continued from time to time), on fixed salary for temporary project. Their employment was continued based on interim order of High Court. It was held that respondents were appointed on temporary unit which was not regular establishment and posts on which they were appointed and continued to work were not sanctioned posts. Hence, impugned judgment directing State to consider cases of respondents for regularisation sympathetically and if necessary, by creating supernumerary posts, held, unsustainable and without jurisdiction. [State of Gujarat v. R.J. Pathan, (2022) 5 SCC 394]

Territorial Jurisdiction of Courts in Domestic Arbitration: In this article, issue of territorial jurisdiction of courts in arbitrations in India has been discussed. Territorial Jurisdiction of Courts in Domestic Arbitration: The Saga of seat and venue continues by Arjun Krishnan and Ankur Singh, (2022) 5 SCC (J-1)]

Treatment of Personal guarantors under the Indian insolvency regime: This article seeks to delineate the position of personal guarantors under the Insolvency Code and to discuss the treatment of promoters as personal guarantees under the Indian insolvency regime in light of the judgment in Lalit Kumar Jain, (2021) 9 SCC 321 and other relevant decisions. General principles relating to the treatment of Personal guarantors under the Indian insolvency regime by Sriram Venkatavaradan and Saai Sudharsan Sathiyamoorthy, (2022) 5 SCC (J-8)]

Case BriefsHigh Courts

Orissa High Court: S.K Panigrahi, J. dismissed the petition and remarked “no application for alteration of date of birth after five years from the joining date will be entertained.”

The instant writ petition was filed for correction of the date of birth from 01-02-1963 to 01-02-1965 which was wrongly recorded in the petitioner’s service book entry. The petitioner is currently employed as a peon in the Dinapadma High School, Baghamund, in the district of Bolangir and has made representations that his date of birth has been wrongly recorded. 

Counsel for the petitioner submitted that if the date of birth of the petitioner is not subjected to correction within the optimal amount of time, then the petitioner will face the problem of premature retirement and irreparable loss & injury.

A notification (No.2102 – 2R/1-27/94-Gen) issued by the Government of Orissa dated 30th January, states

“(i) No alternation of the date of birth once recorded in the Service Book/Service Roll of an employee, shall be made excepting in case of clerical error without prior approval of the State Government. An application for effecting a change in the date of birth shall be summarily rejected if a) filed after five years of entry into Government service, or b) the change would lower the applicant’s age to an extent that he/she would have been ineligible to appear in any of the academic or recruitment examination for appointment to any service or post under the Government.”

 The Court relied on the Supreme Court judgment named Secretary and Commissioner, Home Department v. R. Kirubakaran, AIR 1993 SC 2647 wherein it was observed

“…….As such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the court or the tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants to raise such a dispute without explaining as to why this question was not raised earlier…….”

 “An application for correction of the date of birth by a public servant cannot be entertained at the fag end of his service. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process.

the court must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within time fixed by any rule or order. The onus is on the applicant to prove about the wrong recording of his date of birth in his service book.”

The Court thus noted that the application is time-barred and was not filed within five years from the date of joining. In the instant case, according to the notification it was made clear that no alteration of the entry should be allowed after five years.

 The Court held “petitioner’s claim is time-barred and hence, cannot be entertained.”[Ugrasen Sahu v. State of Odisha, 2022 SCC OnLine Ori 1468, decided on 27-05-2022]


 Appearances

For Petitioners: Ms D.J. Sahu

For Opp. Parties: Mr Biswajit Mohanty


Arunima Bose, Editorial Assistant has reported this brief. 

Case BriefsSupreme Court

Supreme Court: Reversing the concurrent findings of the Single Judge and Division Bench of Kerala High Court, the Bench of S. Abdul Nazeer* and Vikram Nath, JJ., held that the State cannot recover excess amount paid to the ex-employee after the delay of 10 years.

The Court held that if the amount was not paid on account of any misrepresentation or fraud of the employee but it was the employer who applied wrong principle for calculating allowance or misinterpreted a, such excess payment of emoluments or allowances are not recoverable. The Court clarified,

“This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered.”

Question of Law

The issue before the Court was whether increments granted to the appellant, while he was in service, can be recovered from him almost 10 years after his retirement on the ground that the said increments were granted on account of an error?

Backdrop of Events

The brief facts of the case were such that the appellant was a High School Assistant/Teacher in an aided school. During his tenure, he availed leave without allowance first from 20-10-1972 to 31-03-1973 and again from 02-07-1973 to 28-03-1974, for pursuing post-graduation i.e., M.Sc. (Chemistry) Course.

Later on, the appellant was promoted as Headmaster of the school and was granted senior grade promotion and his pay scale was revised accordingly. Consequently, a notice was served to the appellant by District Educational Officer with an objection that the period of leave obtained for undergoing higher education should not be included while determining total qualifying service. Therefore, the Educational Officer recommended that pay and subsequent increments granted to the appellant should be recovered from him.

The proposal to initiate recovery proceedings was challenged by the appellant before the Public Redressal Complaint Cell which rejected the said complaint stating that post-graduation degree M. Sc. (Chemistry) was not useful as per the Rule 91A Part I of the Kerala Service Rules in any manner to the public service, therefore, leave without allowance could not be counted for service benefits.

Impugned Findings of the High Court

Meanwhile, the appellant retired from service. Pursuant to the order of Educational Officer the Deputy Director Education sanctioned the release of 90% of the death-cum-retirement gratuity (D.C.R.G.) amount after withholding 10% of the said amount. Aggrieved, the appellant approached the High Court which upheld the reasoning given by the State and dismissed the writ petition holding that the mistake committed by the department while granting the service benefits can be rectified subsequently by way of proposed recovery to be effected from appellant’s D.C.R.G. amount.

The appellant contended that the excess payment made to the appellant was not on account of any misrepresentation or fraud on his part; rather the excess payment was made due to a mistake in interpreting the Kerala Service Rules.

Analysis and Findings

The Court opined that if the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable.

However, the Court clarified that if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess.

Conclusion

Hence, considering that the access amount was not paid on account of misrepresentation or fraud played by the appellant, the Court held that an attempt to recover the said increments after passage of ten years of retirement was unjustified. Consequently, the impugned judgment and order was set aside and quashed.

[Thomas Daniel v. State of Kerala, 2022 SCC OnLine SC 536, decided on 02-05-2022]


*Judgment by: Justice S. Abdul Nazeer


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah* and B.V. Nagarathna, JJ., reversed the impugned order of the Rajasthan High Court whereby the High Court had directed  Income Tax Department to grant grace marks to the applicant and treat him as a person belonging to general category.

Restoring the findings of the Central Administrative Tribunal, the Court held that the CBDT had introduced a grace marks policy to enable marginally failing candidates to pass the examination and the purpose of benefit was not to allow the reserved category candidate to switch over to the general category. The Court held,

“…once the respondent – original applicant passed in his own category, there was no question of allowing/granting him any further grace marks.”

Background 

The original applicant, who belonged to the Scheduled Tribes (ST) category, was working as a lower Division Clerk in the Department of Income Tax. Later on, he was promoted to the posts of Tax Assistant, Sr. Tax Assistant and Office Superintendent.

With a view to regulate the departmental examination for Income Tax Inspectors, the competent authority introduced modified rules for Departmental Examination for Income Tax Inspectors – 1998. As per the modifications, a candidate securing a minimum of 45% marks in five subjects except in Hindi was entitled to be declared as pass. For the members of SCs and STs, the minimum qualifying mark was 40%. Further, for the benefit of those candidates who marginally failed to secure minimum marks, irrespective of their category, on falling short of passing up to five marks, the Central Board of Direct Taxes (CBDT) introduced the ​​​​​policy of awarding grace marks.

It was the case of the original applicant that he had secured more than 45% marks in each subject except the subject of “Other Taxes”. Hence, he was entitled to grace marks in the subject of “Other Taxes”, but the same was not given to him as he was treated qualified in the category of Scheduled Tribes. The applicant contended that since he had got 43 marks in “Other Taxes” had he been given two grace marks, he would have been declared eligible for promotion against general vacancies.

Findings of the Tribunal and the High Court 

The Tribunal, by a reasoned and detailed judgment and order, dismissed the application preferred by the applicant by observing that the CBDT circular providing grace marks cannot be interpreted to mean that a person, who has passed in his own category can be given further grace marks to enable him to move in the general category on his own merit.

However, the said order was reversed by the High Court of Judicature for Rajasthan at Jodhpur. The High Court had directed the Income Tax Department to extend the grace marks to the applicant in the subject of “Other Taxes” by treating him as a person belonging to general category.

Analysis and Conclusion  

Observing that the CBDT had introduced the grace marks policy with the purpose of enabling the marginally failing candidates to pass in the examination, the Court opined that once the respondent – original applicant passed in his own category, there was no question of allowing/granting him any further grace marks.

The Court explained that only in a case where any candidate belonging to any category is marginally failing to pass the examination, he is/was to be allowed the grace marks so as to allow him to obtain the minimum passing marks required and that too by allowing up to five grace marks.

Therefore, the Court opined that the Tribunal had rightly not accepted the arguments of the applicant. Further, the Court held that the High Court, while passing the impugned judgment and order,​​​​​ had not at all appreciated and/or considered in its true spirit the object and purpose of grace marks policy introduced by CBDT.

Consequently, the impugned judgment and order were quashed and set aside. The judgment and order passed by the Tribunal dismissing the O.A. was restored.

[Union of India v. Mukesh Kumar Meena, 2022 SCC OnLine SC 525, decided on 28-04-2022]


*Judgment by: Justice M.R. Shah


Appearance by: 

For Union of India: Advocate Nachiketa Joshi

For the Applicant: Advocate Sumant Bhardwaj


Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsHigh Courts

Delhi High Court: Expressing that, RTI Act is a tool that facilitates the employees and officers in airing their grievances systematically, the Division Bench of Manmohan and Sudhir Kumar Jain, JJ., remarked that,

“…both service and RTI laws ‘act like a safety valve in the society’.”

Respondent 2 was working as a Superintendent in Administration with Enforcement Directorate. She had filed an application under the Right to Information Act, 2005 seeking the following information:

(1)copies of all the seniority list in respect of LDCs for the period of 1991 till date;

(2)copies of the proposal for promotion of LDCs placed before the DPC together with copies of the Minutes of the Meetings and copies of the promotion orders issued on the recommendations of the DPC from time to time.

Analysis, Law and Decision

The appellant is an intelligence and security organization specified in second schedule of the RTI Act and is exempt from the purview of the RTI Act except when the information pertains to allegation of corruption and human rights violation.

Instant matter involved interpretation of Section 24 of the RTI Act.

It was stated that the Division Bench of this Court in Esab India Ltd. v. Special Director of Enforcement, 2011 SCC OnLine Del 1212, upheld the Constitutional validity of Section 24 of the RTI Act.

Further, the Court expressed that the appellant being an intelligence and security organization was exempt from the purview of the RTI Act except when the information pertained to allegations of corruption and human rights violation.

The expression ‘human rights’ cannot be given a narrow or pedantic meaning. Human rights are both progressive and transformative.

Whether the information sought by the respondent falls within the expression human rights?

Bench opined that,

Human rights have been used for a variety of purposes, from resisting torture and arbitrary incarceration to determining the end of hunger and of medical neglect.

In the present matter, non-supply of the information/documents is a human rights violation as in the absence of the same respondent 2 would not be able to agitate her right to promotion.

High Court expressed that, if employees of an establishment cannot agitate their grievances before judicial forums, these organizations/establishments may become autocratic.

Information pertaining to proposals for promotion of third parties cannot be provided to the respondent in view of Section 11 of the RTI Act.

Hence the High Court held that the information pertaining to proposals for the promotion of third parties cannot be provided to the respondent in view of Section 8(1)(j) and 11 of the RTI Act.

Lastly, the Court directed the appellant to provide copies of all the seniority list in respect of LDCs for the period of 1991 till date as well as copies of the proposal for promotion of respondent (LDC) placed before the DPC together with copies of the Minutes of the Meetings and copy of the promotion/rejection order issued on the recommendations of DPC from time to time.

In view of the above present appeal was disposed of. [Union of India v. CIC, 2022 SCC OnLine Del 824, decided on 22-3-2022]


Advocates before the Court:

For the appellant:

Mr Amit Mahajan, CGSC

Mr Dhruv Pande, Advocate.

For the Respondents:

Mr Shiv Kumar, Advocate for R-2 with respondent 2 in person.

Madras High Court
Case BriefsHigh Courts

Madras High Court: S.M. Subramaniam, J., expressed that employees cannot seek any direction to fill up the post or claim a promotional post.

What was the relief sought in the present matter?

To direct the respondent to consider petitioner’s representation in connection with the acceptance of reviewed cadre strength by relying upon the vacancy position available during 2019-2020 as expeditiously as possible as to enable him to get his name included in the select list prepared in the said regard.

High Court expressed in the above regard that,

Promotion per se cannot be claimed as a matter of right by the employee.

No doubt, consideration for promotion is a fundamental right of the employee.

Further, the Court added that, administrative prerogative cannot be insisted upon by the employees though they are eligible for promotion/appointment, as the case may be.

The petitioner claimed that he was working as District Revenue Officer and was eligible for the conferment of post in Indian Administrative Service and if Cadre Strength Review Committee has been constituted duly in time, he would be getting an opportunity of securing appointment as I.A.S Officer. However, such a claim is hypothetical in nature.

Bench stated that it cannot make a decision on future events.

 “…once a decision is taken by the Authority Competent to prepare a panel for promotion, then all eligible persons are to be included for grant of promotion to the post of I.A.S.”

 High Court added that, as far as I.A.S. is concerned, the Central Government has to take a decision and therefore, the petitioner cannot have any right to claim that Cadre Strength Review Meeting is to be conducted for the purpose of granting promotion.

Additionally, the Court observed that mere preparation of panel by the Authority Competent would not be a ground to confer any right on the petitioner to seek a direction against the Government of India to convene a Review Committee Meeting and to prepare a panel.

In the present matter, petitioner had not established even a semblance of legal right to direct the respondent to consider his representation and mere direction to the Authority concerned to consider the representation would do no service to the cause of justice in the absence of establishing any legal right.

The above petition was dismissed on being devoid of merits.[B. Muthuramalingam v. Government of India, 2022 SCC OnLine Mad 1306, decided on 15-3-2022]


Advocates before the Court:

For Petitioner: Mr R. Anand

For Respondent: Ms L. Victoria Gowri, Assistant Solicitor General of India

Case BriefsSupreme Court

Supreme Court: The bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that a voluntary retiree cannot seek retrospective promotion as a matter of right sans rules governing.

The Court was deciding a case where the actual vacancy in Junior Administrative Grade – I (JAG-I) accrued in 2011, however, the respondent sought retrospective promotion from 2009. It is pertinent to note that the respondent had voluntarily retired in the year 2010.

The Court observed that it is trite law that once an officer retires voluntarily, there is cessation of jural relationship resorting to a “golden handshake” between the employer and employee. Such a former employee cannot seek to agitate his past, as well as future rights, if any, sans the prescription of rules. This would include the enhanced pay scale.

Hence, in the facts of the case, it was held that the Respondent was rightly not considered in the Departmental Promotion Committee (DPC) in 2012 since he was no longer in service at the relevant point of time. Hence, the High Court committed an error in relying upon a circular, which has got no application at all, particularly in the light of our finding that we are dealing with a case of promotion simpliciter as against upgradation of any nature.

[Union of India v. Manpreet Singh Poonam, 2022 SCC OnLine SC 272, decided on 08.03.2022]


*Judgment by: Justice MM Sundresh


Counsels

For appellants: Advocate Rekha Pandey

For Respondent: Advocate Avnish Ahlawat

Case BriefsSupreme Court

Supreme Court: The bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has observed that a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules.

The Court was deciding a case where the actual vacancy in Junior Administrative Grade – I (JAG-I) accrued in 2011, however, the respondents sought retrospective promotion from 2009. Both the respondents before the Court worked with the appellant holding the post of Junior Administrative Grade-II. While one voluntarily retired in the year 2010 ( CASE NO. 1), the second one was appointed to JAG-I service on an ad hoc basis only on 27.12.2011 after being placed in the select list against a notional vacancy in 2009 (CASE NO. 2).

JAG-I a promotional post or mere upgradation of JAG-II?

The Court disagreed with the High Court’s view that JAG-I is a mere upgradation of JAG-II and explained,

“Differential pay scale along with a process of selection qua suitability fixing eligibility criteria are the factors to determine whether a particular post is the same as the other or a promotional one. We feel that such an exercise is not required since the rules themselves are specific. When the rules are specific and clear, there is no need for interpretation which may lead to a case of judicial legislation.”

Hence, the post of JAG-I is certainly a promotional post from the feeder cadre of the JAG-II.

Right to retrospective promotion

The Court made clear that a mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process. It is also to be borne in mind that when we deal with a case of promotion, there can never be a parity between two separate sets of rules. In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules.

CASE No. 1

Holding that a voluntary retiree cannot seek promotion as a matter of right sans rules governing, the Court observed that it is trite law that once an officer retires voluntarily, there is cessation of jural relationship resorting to a “golden handshake” between the employer and employee. Such a former employee cannot seek to agitate his past, as well as future rights, if any, sans the prescription of rules. This would include the enhanced pay scale.

Hence, the first Respondent was rightly not considered in the Departmental Promotion Committee (DPC) in 2012 since he was no longer in service at the relevant point of time. Hence, the High Court has committed an error in relying upon a circular, which has got no application at all, particularly in the light of our finding that we are dealing with a case of promotion simpliciter as against upgradation of any nature.

CASE No. 1

Explaining the provisions under the National Capital Territory of Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil Service) Rules, 2003, the Court said that as there is no vested or accrued right over a promotional post, in the absence of any vacancies actually in existence for the year 2009, the migration of the other officers of the Indian Administrative Service (IAS) cadre took place only in the year 2011. Thus, the embargo brought forth by Rule 4 and 7 of the 2003 Rules would not facilitate such a relief. Under the Indian Administrative Service (Appointment by promotion) Regulations 1954, and IAS (Regulations of Seniority Rules, 1987, Officers inducted into IAS from ‘JAG-I’ get seniority from the date on which vacancy arises, even though induction takes place subject to DPC.

In the present case, there was a delay in holding of DPC for induction of JAG-I officers into IAS, as such actual vacancy in JAG-I occurred in 2011, even though notional vacancy may have arisen in 2009 itself. Since the promotion from JAG-II to JAG-I is governed by the 2003 Rules, which prescribe promotion when actual vacancy arises and DPC takes place, as such, a right would accrue to an officer only after his entry and therefore, mere inclusion in the select list based on induction of JAG-I officers into IAS, is of no consequence. Under the 2003 Rules, a vacancy would mean an actual one and inclusion in the select list to a different cadre governed by different rules would not create a deemed one.

Hence, the second respondent was appointed to JAG-I service on an ad hoc basis only on 27.12.2011 and, therefore, without being inducted in the said cadre, he cannot seek for promotion with retrospective effect. He was given promotion after the successful consideration by the DPC. On such clearance the appellant has rightly fixed the promotion with the year of actual vacancy, as per rules. Thus, the Respondent neither on facts nor on law can claim retrospective promotion, and that too from the year 2009 being the year in which he was placed in the select list against a notional vacancy, especially when the then existing vacancy accrued only in the year 2011, when the JAG-I officers were actually inducted into IAS, against which he was promoted.

“As such, the promotion cannot be granted retrospectively and extended to give benefit and seniority from the date of notional vacancy, causing violence to Rule 4 and 7 of the 2003 Rules.”

[Union of India v. Manpreet Singh Poonam, 2022 SCC OnLine SC 272, decided on 08.03.2022]


*Judgment by: Justice MM Sundresh


Counsels

For appellants: Advocate Rekha Pandey

For Respondent: Advocate Avnish Ahlawat

Case BriefsHigh Courts

Manipur High Court: Lanusungkum Jamir, J. allowed a petition pertaining to appointment/promotion of High School teachers.

Petitioners along with respondent  3, 4, 5, 6 and 9 were elected as members of the Management Committee of the Sakhi Devi Girls High School in the General Body Meeting held on 24-10-2013. The Zonal Education Officer/Zone-1, Government of Manipur vide order dated 26-12-2013 approved the formation of the School Management Committee. Petitioner 1 submitted an objection to the ZEO, Zone-1 on 26-12-2013 against the inclusion of respondent 5 and 6 as members of the School Management Committee on the ground that respondent 5 is involved in a criminal case and respondent 6 cannot be a local educationist in as much as he was not a local resident of Uripok Constituency wherein the Sakhi Devi Girls’ High School was located.

During the pendency of objection filed by petitioner 1, the first meeting of the members of the School Management Committee of Sakhi Devi Girls’ High School, for conducting election of the President and Secretary of the School Management Committee was held on 26-02-2014 comprising of only 5 (five) members and in the absence of the petitioner and another four members. Respondent 5 and 6 were elected as Secretary and President of the School Management Committee and one Smt R.K. Sanajaobi Devi, an Unapproved Teacher of the School was recommended as teacher representative in the School Management Committee (SMC).

Against the said election of the President and Secretary of the SMC, the petitioner submitted representations to the concerned authority. However, the said representations were not considered. In the meantime an emergency meeting of the SMC of Sakhi Devi Girls’ High School was held on 21-02-2015 at the residence of the President of the SMC. Another meeting of the members of the SMC and Staff Members of the Sakhi Devi Girls’ High School was held on 23-7-2016.

On the basis of the resolution passed in the meeting of the SMC held on 21-02-2015and 23-7-2016, the Secretary, SMC issued order dated 10-10-2016 appointing/promoting the respondent 7, 8, 9 and 10 as temporary teachers at Sakhi Devi Girls’ High School.

The petitioner submitted several representations to the concerned authority and the State Government including representation dated 5-12-2016 addressed to the Director of Education, Government of Manipur, the Additional Director, Education (S)/V, Government of Manipur and the ZEO, Zone-I, Government of Manipur, requesting to cancel the promotion/appointment order of the respondent 7 to 10. However, no action was taken by the respondents. Petitioners challenged the order dated 10-10-2016 issued by the Secretary, School Management Committee, Sakhi Devi Girls’ High School, Uripok Imphal.

Rule 14 (b) of the Rules of 1975 provides that all resolutions passed at the emergency meeting will be subject to confirmation or revision at the next ordinary meeting, none of the respondents, either the State or the respondent 3 to 10 has brought on record that the resolution passed in the emergency meeting held on 21-02-2015 was confirmed or revised in the next ordinary meeting. Resolution passed in the Emergency Meeting held on 21-02-2015 being without quorum and not confirmed in the ordinary meeting, cannot be held to be valid. No action was passed in the emergency meeting held on 21-2-2015. In absence of quorum, any resolution passed in the SMC meeting held on 23-07-2014, cannot be accepted by this Court.

Court considered the letter dated 19-11-2018 produced by the Government Advocate. Admission by the official respondents that the Secretary, SMC was not empowered to convene an emergency meeting. It was stated that the Secretary had convened meeting under the instruction of the President of the SMC and was also chaired by the President. The issue was to convene the meeting under Rules of 1975 and not under whose instruction the meeting was convened and who chaired it.

Impugned order dated 10-10-2016 passed by the Secretary, SMC, Sakhi Devi Girls’ High School, Uripok, Imphal, appointing/promoting the respondent7, 8, 9 and 10 as temporary teachers of Sakhi Devi Girls’ High School (Aided) and also the order dated 10-10-2016 issued by the ZEO, Zone-I approving the order dated 10-10-2016 issued by the SMC, Sakhi Devi Girls’ High School (Aided) were set aside and quashed. The writ petition was allowed.[Nameirakpam Nodiachand Singh v. State of Manipur, 2022 SCC OnLine Mani 102, decided on 08-02-2022]


Mr A.Bimol and Mr A.Golly, Advocates for petitioners

Ms Sundari, GA & Mr Kh.Binoy, Advocates for respondents


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: A division bench of Akil Kureshi CJ and Madan Gopal Vyas J. dismissed the petition stating that nothing would come in the way of the petitioner in seeking inter-district transfer if the Government rules and regulations recognize any such policy.

The facts of the case are such that the petitioner was selected for the post of PTI Grade-II by the State Government in Jhunjhunu district. It appears that the select list was reshuffled on account of litigation and consequent Court orders. The State Government thereupon issued a circular to give effect to the reshuffling of the select list wherein it states that those candidates, who on account of such reshuffle are being included in the select list, would be called for counseling for allotment of appropriate district. This counseling would not be necessary for the PTI already appointed. Some aggrieved persons filed Civil Writ Petition which was dismissed permitting those petitioners to make a representation to the authorities. The authorities thereupon issued a fresh circular that those representations in which the request for movement within district are made, may be considered. However, the request for inter-district transfers would not be accepted. The aggrieved petitioner thereupon approached the High Court contending that less meritorious persons have been accommodated in Alwar district, whereas she is sent to Jhunjhunu. The present appeal was filed by the original petitioner to challenge the impugned judgment.

The Court relied on judgment Nirmla Jat v. State of Rajasthan , S.B. Civil Writ Petition No.5753/2020, decided on 14-9-2020 and observed that the question of appointment or absorption in particular district, division or zone at the time of recruitment is essentially for the convenience of the selected candidate but this always is subject to administrative exigencies. No person has a vested right to be posted at a particular place. The selections and recruitments must attain finality. Posting orders which are consequential to such selection and recruitment also must not be allowed to be raised after a reasonable period of time. Accepting such request for inter-district transfer can lead to chain reaction and at times considerable administrative difficulties.

The Court observed and held that the transfer liability of the cadre of teachers was reckoned division-wise. Accordingly, the observations were made for the movement of teachers within division. In the present case, we are concerned with the post of PTI Grade-III where the cadre is maintained district-wise. The learned Single Judge was of the opinion that the observations and directions of the Court in the case of Nirmala Jat (supra) therefore have to be suitably modified for adoption in the present case. Thus, the petitioner did not have choice of inter-district transfer and the communication of the authority dated 12.10.2021 not accepting any such representation for inter-district transfer was correct.

[Soniya Burdak v. State of Rajasthan, 2022 SCC OnLine Raj 412, decided on 04-02-2022]


Appearances:

For Appellant(s): Mr. Vikram Singh Bhati


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court of India: While deciding the instant petition wherein the division bench of L. Nageshwar Rao and B.R. Gavai, JJ., had to consider that whether the prescribed educational qualifications in Regulation 6 and 7 of Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 can be deviated from by an order of the State Government. The Court observed that such a power is traceable to Regulation 116 of the Safety Regulations which enables the Central Government or the State Government to allow deviations in respect of matters referred to in the Safety Regulations, including the ones in Regulations 6 and 7.

Facts and Legal Trajectory of the Case

As per the powers conferred under S. 131 (1),(2),(5),(6) and (7) of the Electricity Act, the State of Kerala notified the Kerala Electricity First Transfer Scheme, 2008 dated 31.10.2013. The Scheme revested all the functions, properties, interests, rights, obligations and liabilities in Kerala State Electricity Board Limited (company incorporated under the Companies Act, 1956 and fully owned by the Government of Kerala). Clause (6) of the scheme provides for transfer of personnel by the State Government and that the transfer shall be governed by the conditions enumerated in Schedule- ‘B’ of the scheme and clause (8).

Later a Tripartite Agreement was entered into between the State of Kerala, KSEBL, and the Unions and Associations representing workmen and officers of the erstwhile Kerala State Electricity Board on 01.08.2014. The State Government and KSEBL assured the existing employees that the terms and conditions of service such as promotions, transfers, wages, compensations, leave, allowances, etc. upon transfer to KSEBL shall continue to be regulated by existing regulations/ service rules in vogue.

By an order dated 13.02.2019, Government of Kerala ordered deviation from the implementation of qualifications prescribed under Regulation 6 and 7 of the Safety

Regulations for the existing employees of KSEBL, in exercise of the power conferred on the State Government under Regulation 116 of the Safety Regulations. The deviation was applicable to employees working with the KSEBL on the date of the order dated 13.02.2019 and for all future appointments and promotions, the qualifications prescribed in the 2010 Regulations were to be strictly followed.

The dispute came before the Kerala HC. The single judge bench of the HC declared the State Govt. Order Dt. 13.02.2019 as unsustainable and the KSEBL was directed to make promotions strictly in accordance with the provisions contained in Regulations 6 and 7 of the Safety Regulations. The Division Bench of the HC however partially set aside the 2019 G.O. to the extent that it granted exemption to the employees/officers who entered service after 31.10.2013.

Issues

Whether the prescribed educational qualifications in Regulation 6 and7 of Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 can be deviated from by an order of the State Government

The next issue was regarding the exercise of powers by the Government of Kerala in issuing order dated 13.02.2019.

Contentions

The appellants argued that that they possess the necessary qualifications required under Regulation 6 and 7 of the 2010 Regulations and the decision of the Government to deviate from the requirements of Regulation 6 and 7 would make ineligible employees fit for promotion to the higher posts which would be detrimental to the interests of the Appellants.

They further contended that the deviation permitted by the order dated 13.02.2019 would amount to compromising the safety norms prescribed by the Central Electricity Authority which would adversely affect larger public interest.

The wholesale exemption granted to the officers and employees from possessing the requisite educational qualifications as prescribed in Regulation 6 and 7 is impermissible in exercise of the power under Regulation 116 of the Safety Regulations. The appellants based their argument on the language of Regulation 116 which permits the concerned Government only to ‘deviate’ from the regulations which, according to the Appellants, cannot be read as ‘exempt’.

The Provisions in Question

Electricity Act, 2003 was enacted to consolidate the laws relating to generation, transmission, distribution, trading and use of electricity and generally for taking measures conducive to development of electricity industry, promoting competition. The Act has provisions related to safety and electricity supply (S.53); constitution of Central Electricity Authority (S. 70) and other related provisions (Ss. 73, 177). The Court also considered the Central Electricity Authority (Measures relating to Safety and Electric Supply) Regulations, 2010 and its Regulations 6& 7 which safety measures for operation and maintenance of electric plants and transmission, distribution systems respectively; and, Regulation 116 which empowers the Central or the State Governments to allow deviations in respect of matters referred to in the regulations by an order in writing.

Part XIII of the Electricity Act deals with reorganization of KSEB and The Statement of Objects and Reasons of Electricity Act, wherein one of the features of the Electricity Bill, relates to the incorporation of a transfer scheme by which company/companies can be created by the State Government. Furthermore S. 131 of the Electricity Act provides for vesting and revesting of property of the KSEBL in the State Government. S. 133 of the Electricity Act deals with provisions related to officers and employees.

Observations of the Court

While determining the dispute, the Court examined the aforementioned provisions of the Electricity Act, 2003 to get a clear picture of the matter at hand. Upon perusal of the facts and legal trajectory and the provisions in question, the Bench agreed with the observations made by the Division Bench of the Kerala HC in the matter. The Court observed that “Prior to the 2010 Regulations, the Indian Electricity Rules, 1956 framed under Section 37 of the Indian Electricity Act, 1960 were in force. Rule 133 of the said Rules would show that State Governments/Central Government was empowered to grant exemption from the safety provisions contained therein. The power of exemption has been in existence even prior to Electricity Act”.  On scrutinizing the G.O dt. 13.02.2019, the Court noted that State Government directed deviation from the implementation of qualifications prescribed under Regulations 6 and 7 of the Safety Regulations- “Though the word exemption was not employed in the order dated 13.02.2019, the effect of the direction issued by the Government was to exempt the employees from the prescribed qualifications. Thus, Regulations 6 and 7 were relaxed in favour of the erstwhile employees. The width and amplitude of Regulation 116 cannot be restricted by interpreting the word ‘deviation’ as having lesser scope than exemption. ‘Deviation’ from the Regulations would amount to either exemption or relaxation”.

Regarding the question of exercise of powers by the Government of Kerala in issuing order dated 13.02.2019, the Bench pointed out that promotion and other service conditions of the officers and employees transferred to KSEBL under the transfer scheme are protected under Ss. 131 and 133(2) of the Electricity Act in juxtaposition with the transfer scheme and the tripartite agreement. The explanation attached to S. 133 makes it clear that “officers and employees” referred to in the section are only those officers and employees of the Board on the date of transfer scheme, i.e. on 31.10.2013.

Conclusion

With the aforestated observations, the Court upheld the decision of the Division Bench of Kerala HC via which the High Court restricted the applicability of the order dated 13.02.2019 to such of those employees transferred from KSEB prior to 31.10.2013. The exercise of power by the Kerala Government in issuance of the order dated 13.02.2019 is well within its jurisdiction, grant of exemption in favour of erstwhile employees cannot be termed as arbitrary. However, the extension of the continuity to employees appointed after 31.10.2013 is not reasonable and only the transferred employees are entitled for protection of their service conditions.

Since the counsel for the appellants did not make any submissions regarding the vires of Reg. 116, the Court did not find it necessary to adjudicate the validity of the provision

[Muhammed AA. v. State of Kerala, 2022 SCC OnLine SC 198, decided on 18.2.2022]


*Judgment by: Justice L. Nageshwara Rao


Sucheta Sarkar, Editorial Assistant has put this report together

Case BriefsSupreme Court

Supreme Court: While addressing the question of law with regard to lifespan of relinquishment of claim for consideration for promotion in educational institutions, the Division Bench comprising of Ajay Rastogi* and Abhay S. Oka, JJ., expressed,

“…the paramount consideration not to disrupt the academic and research work of a senior Professor when his turn arises and if he has shown unwillingness, his seniority has to be given its predominance and opportunity be available to him to serve when the next rotation becomes due…”

The instant appeal had been preferred to assail the judgment of the Kerala High Court whereby it had set aside the judgment of the Single Judge and directed the Cochin University of Science and Technology to nominate respondent 1 as Head of the Department (HOD) of School of Management Studies of Cochin University.

Background

Notably, both the appellant and respondent 1 were members of the teaching faculty and the appellant was senior to respondent 1. In terms of Section 39(1) of the University Act, the Government of Kerala framed its Statute 18 envisaging the appointment of a Director/HOD. The crux of the issue was that the appellant being the next senior most Professor in queue was eligible to be nominated by rotation as HOD in the year 2017, however, because of his preoccupation in teaching and research he had expressed his unwillingness to be considered for the post. Accordingly, the next eligible Professor Dr. Mavoothu D. was nominated as Director/HOD for a period of three years.

It was the case of the appellant that before the term of Dr. Mavoothu D was going to expire; he had showed his willingness at that stage for appointment as Director/HOD. At the same time, respondent 1 who was next to the appellant in seniority equally protested the claim of the appellant.

Statute 18

The Syndicate of the University observed that the relinquishment made by the appellant was specific to the nomination in the year 2017 and that was the reason Dr. Mavoothu D. was nominated. Taking note of Statute 18; that the rotation begins according to seniority and not at the point at which earlier nomination was made, the University held that the appellant had to be considered first.  The reasoning given by the University was that it gives paramount importance to academic and research work and doesn’t want to disrupt the academic and research work of a senior Professor when his turn arises but intend to nominate the teacher after those activities are over and accordingly recommended the name of the appellant to be appointed as HOD.

Relinquishment of promotion; whether transitory or perpetual?

Challenging the order of the University, the respondent 1 had approached the High Court, the Single Judge had observed that the senior most person had to be considered for appointment as HOD/Director of the Department on rotational basis for a period of three years and the appellant who had relinquished his claim on rotation of three years in the year 2017 had expressed his unwillingness only for the period when his name came for consideration in 2017 but the time when a fresh consideration had taken place, the appellant could not be denied his right of fair consideration as the relinquishment could not be for an infinite period.

However, by the impugned judgment, the findings of the Single Judge was overturned by the Division Bench on the premise that Statute 18 conspicuously takes note of seniority on a rotational basis for a period of three years and once the relinquishment was made by the appellant in terms of the Statute 18, the appellant had foregone his right of consideration for all times to come and respondent 1, who was the next in queue, was to be considered for nomination.

Analysis and Findings

Noticeably, what is being envisaged from Statute 18 is that teachers who are eligible for being considered for HOD according to seniority on a rotational basis for a period of three years, if shows unwillingness or makes a request to be relieved from such a responsibility for academic reason, can certainly be relieved for that rotation but there is no prohibition which deprives the teacher from being considered for appointment as HOD when the second rotational term becomes due. However, it was not in dispute that earlier on two different occasions, the Professors who had shown their unwillingness at one point of time were considered by the University when the second rotational term became due because of his/her seniority and eligibility to be nominated for the post of Director/HOD.

Relying on in N. Suresh Nathan v. Union of India, 1992 Supp.(1) SCC 584., wherein it had been held that “past practice which is being followed for long time if not contrary to law, be given its true precedence and ordinarily not to be interfered by the Courts in exercise of power of judicial review under Article 226 of the Constitution of India”, the Bench opined, although there was no prohibition under Statute 18, still if two views are possible and the University had interpreted in the way which serves the purpose keeping in view the paramount consideration to the academic and research work and the seniority of the teachers while considering for appointment as HOD, the same could not be called inappropriate and unjust.

Since, the appellant had relinquished his claim in the year 2017 because of undergoing research work at that time, the Bench opined that keeping in view the paramount consideration not to disrupt the academic and research work of a senior Professor when his turn arises and if he has shown unwillingness, his seniority has to be given its predominance and opportunity be available to him to serve when the next rotation becomes due and that was the reason the appellant was also considered and recommended by the Syndicate to be nominated as HOD/Director School of Management Studies keeping in view the mandate of the Statute.

Conclusion

In the light of above, the Bench concluded that the interference made by the Division Bench in interpreting Statute 18 of the University wa not sustainable in law and deserved to be set aside. Consequently, the appeal was allowed and the impugned judgment was quashed and set aside.

Jagathy Raj V.P. v. Rajitha Kumar S., 2022 SCC OnLine SC 152, decided on 07-02-2022]


*Judgment by: Justice Ajay Rastogi


Appearance by:

For the Appellant: P.S. Patwalia, Senior Advocate

For Respondent 1: Bina Madhavan, Advocate


Kamini Sharma, Editorial Assistant has put this report together 


 

Case BriefsSupreme Court

Supreme Court: While adjudicating the issue as to whether promotion scheme implemented by office memorandum supersedes recruitment regulations, the Division Bench of Dr Dhananjaya Y Chandrachud* and A S Bopanna, JJ., held that regulations made under the statute have the force of law. The Bench expressed,

“The ESIC Recruitment Regulations 2015 had precedence over the Office Memorandum dated 29 October 2008 which implemented the DACP Scheme in respect of officers of the Central Health Service under the Union Ministry of Health and Family Welfare.”

Factual Matrix

The Employees’ State Insurance Corporation (ESIC) had appealed against the judgment of Karnataka High Court, wherein the High Court had Bench rejected ESIC’s petition against the order of Central Administrative Tribunal (CAT) directing it to consider promotion of the contesting respondents – to the post of “Associate Professor” under the Dynamic Assured Career Progression (DACP) Scheme as opposed to ESIC’s recruitment regulations. The stand of the appellant was that the recruitment and promotion of its teaching staff are governed by the Employees’ State Insurance Corporation (Medical Teaching Faculty Posts) Recruitment Regulations 2015 not DACP.

The Central Government had issued the DACP Scheme through an Office Memorandum dated 29-10-2008 contemplating promotion as Associate Professor upon completion of two years of service in the post of Assistant Professor as an officer under the Ministry of Health and Family. After two years of service as Assistant Professor on 2 February 2017, the contesting respondents sought promotion under the DACP Scheme and instituted proceedings before the CAT, wherein the Tribunal held that the ESIC Recruitment Regulations 2015 were not relevant for adjudication of the matter and directed the appellant to consider the contesting respondents for promotion under the DACP Scheme.

Findings of the Tribunal and the High Court

Upholding the findings of CAT, the High Court had dismissed the appeal on the ground that since the contesting respondents were recruited before the ESIC Recruitment Regulations 2015 came into effect, they would get the benefit of the DACP Scheme. Further, the High Court opined that the DACP Scheme has statutory effect under Section 17 of the ESI Act and ESIC Recruitment Regulations 2015 had departed from the DACP Scheme without seeking prior approval of the Central Government.

Observations and Findings

The question before the Bench was with regard to interpretation of Section 17(2)(a) of the ESIC Act, 1948 and the applicability of the Office Memorandum dated 29-10-2008 against the ESIC Recruitment Regulations 2008 and the subsequently issued ESIC Recruitment Regulations 2015.

The ESIC Recruitment Regulations 2008 were issued by the ESIC in the exercise of its powers under Section 97(1) and Section 17(3) of the ESI Act, 1948. While Recruitment Regulations, 2008 embodied a requirement of four years’ service as Assistant Professor for promotion as an Associate Professor, the ESIC Recruitment Regulations 2015 stipulated a requirement of five years’ service as Assistant Professor for promotion to the post of Associate Professor. The preamble of the ESIC Recruitment Regulations 2015 noted that these regulations were to supersede the ESIC Recruitment Regulations 2008 and were made with the approval of the Central Government.

Relying on the decision of Constitution Bench in Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, (1975) 1 SCC 421, wherein it was held that in the event of a conflict between an executive instruction, an office memorandum in this case, and statutory regulations – the latter prevail, the Bench held that the ESIC Recruitment Regulations 2008 and ESIC Recruitment Regulations 2015 had statutory effect by virtue of Section 97(3) of the ESI Act.

Similarly, in Sant Ram Sharma v. State of Rajasthan, (1968) 1 SCR 111, it was held that, “Government cannot amend or supersede statutory rules by administrative instructions, but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framed.”

Therefore, the Bench opined that on the dates when the contesting respondents joined the service of the appellant – 07-02-2014 till 26-06-2016 – their promotions were governed by the ESIC Recruitment Regulations 2008 which mandated four years of qualifying service for promotion from Assistant Professor to Associate Professor. However, when the contesting respondents had completed two years of service, they were governed by the ESIC Recruitment Regulations 2015 which came into effect on 5 July 2015 and mandated five years of qualifying service for promotion from Assistant Professor to Associate Professor. Thus, the Bench held that DACP Scheme facilitating promotion on the completion of two years of service was not applicable to the contesting respondents, when the regulations had a statutory effect that overrides the Office Memorandum dated 29-10-2008 which implemented the DACP Scheme.

On the contention that the advertisements indicated the applicability of the DACP Scheme before the ESIC Recruitment Regulations 2015 were issued, the Bench held that a subsequent amendment to recruitment regulations would override the conditions prescribed in the advertisement.

Regarding the issue that concession of the Counsel for the appellant before the CAT would preclude the appellant from urging that the DACP Scheme was not applicable to the Teaching Cadre at the ESIC, the Bench remarked,

“While this Court expresses its disapproval at the lack of proper instructions being tendered to the Counsel of the appellant, there can be no estoppel against a statute or regulations having a statutory effect.”

Conclusion

In the backdrop of above, the Bench concluded that the CAT and the High Court failed to notice applicability of the ESIC Recruitment Regulations 2015 to the promotions of the Teaching Cadre in the appellant corporation. The advertisements for recruitment mentioning the DACP Scheme would have no effect since they were in contravention of the applicable recruitment regulations. Accordingly, the appeal was allowed and the impugned judgement and order was set aside.

[The Employees’ State Insurance Corpn. v. Union of India, 2022 SCC OnLine SC 70, decided on 20-01-2022]


*Judgment by: Justice Dr Dhananjaya Y Chandrachud


Appearance by:

For the Appellant: Santhosh Krishnan, Advocate

For the Respondents: Yatindra Singh, Senior Advocate and Anand Sanjay M Nuli, Advocate


Kamini Sharma, Editorial Assistant has put this report together 


Case BriefsHigh Courts

Manipur High Court: Lanusungkum Jamir, J. decided on a petition which was filed praying for a direction to permit the applicants to declare the DPC results held on 15-09-2017 which was stayed by order dated 11-09-2017 due to which they were directed not to fill up the post of Associate Professor in JNIMS under the proposed Timescale Promotion Scheme.

Addl. AG appearing on behalf of the applicant submitted that as on date, there were two substantive posts vacant in respect of Associate Professor in Community Medicine in JNIMS, and if the applicants were allowed to accommodate both the writ petitioners subject to the outcome of the writ petitions, the petitioners in both the writ petitions would have the opportunity of being promoted to the next higher post of Associate Professor, Community Medicine. Senior counsel for the petitioner in WP(C) No. 231 of 2020 on the other hand submits that the DPC held on 05-09-2017 pertains not only to the post of Associate Professor, Community Medicine but for other posts also and therefore, if the DPC held on 05-09-2017 is declared then the successful candidate may be promoted to one post and the other unsuccessful candidate may also be accommodated in the next vacant post.

The Court was of the considered opinion that the interim order dated 18-05-2020 passed in WP(C) No. 231 of 2020 is a blanket order not to fill up the post of Associate Professor & Professor in the JNIMS under the proposed Timescale Promotion Scheme. On consideration of the Timescale Promotion Scheme for Teachers of JNIMS Rules, 2020 which was notified on 18th December, 2020, this Court was of the considered opinion that upgradation under this scheme was purely personal and the promotion effected will be non-functional. Interim order dated 18-05-2020 passed in WP(C) No. 231 of 2020 was vacated. The applicants were permitted to make upgradation of the incumbents eligible under the Timescale Promotion Scheme for Teachers of JNIMS Rules, 2020. Applicants were further directed to accommodate both the writ petitioners in the post of Associate Professor, Community Medicine as proposed by the applicants within three weeks based on the outcome of the results.[Jawaharlal Nehru Institute of Medical Sciences (JNIMS) v. Nirendrakumar Singh, 2021 SCC OnLine Mani 479, decided on 20-12-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In a case where a Constable’s name was recommended by the Superintendent of Police but the same was dropped down by the Inspector General of Police for promotion under the 10% quota of outstanding performance for inclusion in the B-I List for promotion to the post of Head Constable in the year 2004, the bench of KM Joseph and PS Narsimha, JJ has held that mere recommendation of the SP at the initial stage is not sufficient to claim a right for promotion.

Factual Background

The Appellant was appointed as a Constable in the year 1995. Due to his acts of bravery his name was recommended by the SP for promotion under the 10% quota of outstanding performance for inclusion in the B-I List for promotion to the post of Head Constable in the year 21.01.2004. However, his name was dropped down by the IG, when only 7 out of the 9 names were forwarded to the Central Departmental Promotion Committee (CDPC). Three years thereafter, i.e., in 2007 his name was again forwarded by the SP and this time it was passed by the IG, by virtue of which he was granted promotion and was made the Officiating Head Constable from 26.10.2008.

He contended that he should have been promoted in the year 2004 itself and that the delay in appointing him in 2008 is illegal and arbitrary. He, hence, filed a writ petition in 2011 seeking retrospective promotion with effect from 21.01.2004. The Punjab and Haryana High Court dismissed the petition on the ground that selection is not a matter of right.

Analysis

The Court observed that assumption that the recommendation of DPC headed by the SP is final and that the IG has no power to review or substitute the decision is misconceived.

The Court noticed that Sub-rule 14 of Rule 13.7 of the Punjab Police Rules, 1934 clearly empowers the IG to exercise the power of scrutiny and grant approval.

The Rule itself clarifies the position that the recommendations of the SP are not final until the same is approved by the IG. Further, the powers of the IG are elucidated clearly in Rule 13.7(14). It is stated that the ‘approval’ is by the Cadre Controlling Authority of the SP. It is the IG, who shall accord ‘approval’ only upon scrutiny.

“If the IG is not satisfied, he shall not accord approval. The scope of the power vested in the IG is also indicated in the Rule which provides that he can seek clarifications from the DPC and also refer the List back to the SP for corrections/omissions if he thinks it is necessary.”

Having considered the Rule in its entirety, the Court was of the opinion that the recommendation of the DPC is not final. It is also evident that the recommendation of the DPC does not give any indefinite right to be appointed as Head Constable.

It was explained that the 10% quota for constables having outstanding performance will be filled on the basis of State level comparative merits.

There is a three-stage scrutiny before a constable is selected as a Head Constable. The third stage requires the candidate to be sufficiently high in the State Level Comparative Merit of the candidates to be selected under the 10% quota. Therefore, it can never be contended that mere recommendation of the SP at the initial stage is sufficient to claim a right for promotion.

On the contention of Appellant that the subsequent recommendation was also on the very same outstanding performance is concerned, the Court observed that the merits and accolades of the candidates recommended for promotion vary from year to year on a comparative merit scale. The competitive environment differs from year to year. The scrutiny is dynamic and cannot be adjudged on the basis of a previous year’s performance. The Appellant’s accolades may not have made a fit case to be recommended in the year 2004 but the same could make a fit case to be considered in a subsequent year.

“It is the domain of the IG as also the CDPC to analyse, consider and clear the names of the candidates found fit to be promoted in the List B-I for that year and it must best be left to the discretion of the said authorities.”

[Sushil Kumar v. State of Haryana, 2022 SCC OnLine SC 64, decided on 19.01.2022]


*Judgment by: Justice PS Narsimha


Counsels

For appellant: Advocate Surender Kumar Gupta