recruitment

Case BriefsSupreme Court

Supreme Court: In the case where a candidate appearing for examination for recruitment to the post of Constables in Railway Protection Force (RPF) had used a different language in the OMR answer book than that filled in the application form, the bench of Hemant Gupta* and Vikram Nath, JJ has held that his candidature was rightly rejected.

In the present case, more than 11,000 posts were advertised for filling up of the posts of Constables in the RPF. Though the number of candidates who appeared in response to such advertisement is not available, but generally, it is a matter of common experience that candidates much more than the posts advertised are the aspirants for such posts. It is important to note that,

  • The question papers are required to be set up in the languages other than Hindi and English as well.
  • The applications in different languages were to be sent to different Nodal Officers in Gorakhpur, Kolkata, Bhubaneshwar and Chennai.
  • The OMR answer sheet is bilingual, in Hindi and English, but it would be in some other language if a candidate has chosen a language other than English or Hindi.

The reason for the condition that language in the application form shall be used for the purposes of OMR examination is that in case any dispute arises in respect of identity of the candidate, the same can be verified from the two handwritings.

The candidate in question has used a different language in the OMR answer book than that filled in the application form. The Division Bench of the Allahabad High Court was of the opinion that on account of lapse of time, the writ petitioner might have attempted the answer sheet in a different language.

The Supreme Court, however, disagreed and held that since the advertisement contemplated the manner of filling up of the application form and also the attempting of the answer sheets, it has to be done in the manner so prescribed. The use of different language itself disentitles the writ petitioner from any indulgence in exercise of the power of judicial review.

“Once the writ petitioner has filled the application form in English, having also signed in English, it cannot be said to be an inadvertent mistake when he has written the para in Hindi. Such writing in different language violates the instruction clearly mentioned in the advertisement.”

It was observed that the language chosen is relevant to ensure that the candidate who has filled up the application form alone appears in the written examination to maintain probity. The answer sheets have to be in the language chosen by the candidate in the application form. It is well settled that if a particular procedure in filling up the application form is prescribed, the application form should be filled up following that procedure alone.

[Union of India v. Mahendra Singh, 2022 SCC OnLine SC 909, decided on 25.07.2022]

*Judgment by: Justice Hemant Gupta

For UOI: ASG Madhavi Divan

For candidate: Advocate Prashant Bhushan

Madras High Court
Case BriefsHigh Courts

   

Madras High Court: S. M Subramaniam, J. upheld the government order that stated, the Degree of B.Sc (Biochemistry) awarded by all Universities in the State recognized by the University Grants Commission is not equivalent to the Degree of B.Sc in Chemistry for the purpose of employment in the public service. The Court refused to interfere with the opinion of the Equivalence Committee, Personnel and Administrative Reforms Department constituted by the rules in force because when the Committee has made certain recommendations and such recommendations were accepted by the Government and an order was issued, then there is no reason to exercise the powers of judicial review under Article 226 to undo the exercise done by the expert body.

The writ petition was filed to quash a Government Order No. 24 dated 04-02-2011 issued by Personnel and Administrative Reforms Department which declared that degree qualification of B.Sc (Biochemistry) will not be equivalent to B.Sc in Chemistry. This was done in accordance with a report submitted by the Equivalence Committee. This order effected the qualification required for selection to the post of B.T. Assistantcandidates with a degree of B.Sc Chemistry can only apply for the post.

The petitioner are the candidates who studied B.Sc Biochemistry and they contended that they have studied chemistry subject and they have attended classes on par with the candidates who have studied B.Sc in Chemistry.

The Court noted that the impugned order was passed on the recommendation of the Equivalence Committee which is a competent authority to evaluate the syllabus and other aspects of the degrees. The Equivalence Committee examined the syllabus and equivalence between both the degrees, this recommendation was accepted by the Government of Madras.

Thus, the Court, while dismissing the petition, stated that judicial review can be exercised only if any unconstitutionalty or violation of statutory rules are established, and it cannot be exercised to undo a work done by a competent authority.

[S.K. Sujatha v. The State of Tamil Nadu,W.P. No. 23805 of 2014 , decided on 06-07-2022]

Advocates who appeared in this case :

A.R. Suresh, Advocate, for the Petitioner;

M. Bindran for R1, R2 and R4 and C. Kathiravan for R4, Advocates, for the Respondent.

*Arunima Bose, Editorial Assistant has reported this brief.

Armed Forces Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (Lucknow Bench): The Division Bench of Justice Umesh Chandra Srivastava, Member (J) and Vice Admiral Abhay Raghunath Karve, Member (A) held that a cadet is akin to a probationer; hence, the employer has a right to discharge a Cadet who is not meeting the medical standards required for military service/training.  

Factual Background 

The applicant joined Officers Training Academy (OTA), Chennai on 05-04-2012 as a Lady Cadet; where she was available for training only for 19 days and was continuously absent from training from 18-04-2012 to 19-11-2012.  

Later on, the applicant was invalided out from service in low medical category due to the following disabilities: 

  • “Persistent Somatoform Pain Disorder” at 40% for life; and  
  • “Non-Supportive Ottis Media (LT) With Mild Hearing Impairment”, at 6-10% for life 

The disabilities were considered as neither attributable to nor aggravated by military service. Therefore, the claim of the applicant for ex-Gratia payment was rejected. Similarly, the first and second appeals of the applicant were also rejected.  

The respondent contended that the applicant’s claim of alleged development of disability (hearing impairment) due to pressure of military training was incorrect and unjustified since cadets are neither subject to hard physical or mental toughness training nor put through weapon training during their initial phase of training in the junior terms. A gradual and easy start is given to all new cadets to enable them to develop their capability to withstand tough military training in later phases of their training. 

Grievances of the Applicant 

As per the applicant, she was under stress and strain of military training which led to the occurrence of the injury. Therefore, both the disabilities should be considered attributable to or aggravated by military service and she should be paid the disability pension and Ex Gratia accordingly.  

The applicant submitted that she had applied for women entry of Short Service Commission (Technical) and at the time of medical board after Services Selection Board (SSB), she was declared temporary unfit due to Chronic Ottis Media (LT) with mild hearing impairment. Later on, after being operated Chronic Ottis Media (LT), she was declared fit in SHAPE-1 by the Army Medical Board. Thereafter, she joined OTA on 05-04-2012.  

Further, the applicant claimed that in May 2012, due to pressure of military training, she had developed a relapse of Chronic Ottis Media (LT) with mild hearing impairment and was treated first at MH Chennai and then at Command Hospital, Air Force, Bangalore, and was placed in medical category H-2 (Temporary) on the recommendation of ENT Specialist.  

Evidently, it was in June 2012 that the applicant was diagnosed with “Persistent Somatoform Pain Disorder” and was recommended to be medically invalided out of service in low medical category S-5.  

Findings and Conclusion  

The Tribunal relied on Narsingh Yadav v. Union of India, (2019) 9 SCC 667, wherein the Supreme Court had held that mental disorders cannot be detected at the time of recruitment and their subsequent manifestation does not entitle a person to disability pension unless there are very valid reasons and strong medical evidence to dispute the opinion of Medical Board. 

Noticing that the applicant had attained the training for a brief period of 15 days, the Tribunal affirmed the findings and opinion of the Medical Board and the Appellate Committee. The Tribunal held that a cadet is akin to a probationer and hence the respondents as an employer have a right to discharge a Cadet who is not meeting the medical standards required for military training/service. Therefore, the Tribunal upheld the opinion of the Medical Board that the applicant’s disability is neither attributable to nor aggravated by military service, and hence, she is not entitled to disability pension and Ex Gratia.  

In view of the above, the Original Application was dismissed.  

[Nira Chaudhary v. Union of India, Original Application No. 99 of 2021, decided on 28-04-2022]  

Appearance by:  

For the Applicant: Vinay Sharma holding brief of Col Y.R. Sharma (Retd), Advocate 

For Union of India: Dr. Shailendra Sharma Atal, Central Govt Counsel 

Kamini Sharma, Editorial Assistant has put this report together 

Central Government Notification
Legislation UpdatesRules & Regulations

On 24th June, 2022, Central Government notified Indian Police Service (Fixation of cadre Strength) Fifth Amendment Regulations, 2022 and Indian Police Service (Pay) Fifth (Amendment) Rules, 2022.

With aim to amend the list of Cadre Strength and the Pay scale of IPS officers of Madhya Pradesh, Department of Personnel and Training (DoPT) with consultation of Government of Madhya Pradesh amends the Schedule of Indian Police Service (Fixation of Cadre Strength) Regulations, 1955 and Schedule II of Indian Police Service (Pay) Rules, 2016.  

 

Key Amendment: 

  • The State Cadre list of Indian Police Services Officers is constituted under Rule 3 of Indian Police Service (Cadre) Rules, 1954. 
  • By amendment of the regulation, the strength of cadre for the State of Madhya Pradesh has been substituted fixing the posts borne on, the strength and composition of deputation under the provisions of Rule 4. 
  • Total Authorised Strength of Madhya Pradesh Cadre has been increased from 305 to  319, which includes the following- 

Senior Duty Posts- 173 

Director General of Police for different zones- 4 

Additional Director General of Police for different zones-16 

Inspector General of Police- 9+2 (zones) and 18 (department-wise) 

Commissioner- 2 

Superintendent- 49 

Commandants- 21 

  • New posts of Superintendent (SPs) in Indore and Bhopal introduced. 
  • The number of recruits has been increased more while positions of promotions have only increased by 5. 
  • Scale of Pay drawn by Madhya Pradesh IPS officers has been further assigned by Indian Police Service (Pay) Fifth (Amendment) Rules, 2022. 
  • Posts carrying above Senior Scale– 

Pay matrix 17- Director General of Police, 

Pay matrix 16- Director General of Police (DGPs) (departments-wise), 

Pay matrix 15- Add. DGPs (departments-wise),  

Pay matrix 14- Inspector General of Police (IGPs) zone and department wise, Commissioner of Indore and Bhopal 

Pay matrix 13A- DIGs (Department-wise), Add. Commissioner of Police  

  • Posts carrying Senior Scale (including allowances)- 

Superintendents, Commandants, DCPs (zone-wise) 

  • These posts include allowances in addition to the pay. The amount of any special allowance for posts in the Senior Time Scale will be Rs.800/-. 
  • These amendments will be applicable from 24th June, 202

*Shubhi Srivastava, Editorial Assistant has reported this brief.

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.

Case BriefsHigh Courts

Kerala High Court: In a significant relief to non-NLU law graduates seeking job opportunities in PSUs, V.G. Arun, J., declared that NTPC’s notification for the recruitment of Assistant Law Officers is discriminatory and violates Article 16 of the Constitution for confining the selection process only to CLAT PG-2021 candidates.  

The Court expressed,  

“There is no logical basis for the assumption that professionalism and competence is the fiefdom of only those passing from elite institutions. The process now adopted is more like a walkover to the finals for a chosen few, without competing in the preliminaries.”

Factual Backdrop and Interim Order 

The petitioner, a Law Graduate, had approached the Court to challenge the notification published by National Thermal Power Corpn. Ltd. (NTPC) inviting applications for appointment to the post of Assistant Law Officer. As per the notification, the selection is confined to only those candidates who have appeared for CLAT-2021 (Common Law Admission Test-2021) Post Graduate programme conducted by the Consortium of National Law Universities. Based on their performance in the test, the candidates would be shortlisted for document verification. 

The petitioner being a law graduate with the requisite minimum marks was desirous of applying for the notified vacancy, but was prevented from doing so, as she had not appeared for the CLAT-2021 PG programme. Therefore, she had assailed the selection process on the ground that it is discriminatory and violates Article 16 of the Constitution. 

Finding prima facile merit in the challenge, the Court had passed an interim order, directing the NTPC to accept the petitioner’s application, subject to the final outcome of the writ petition. 

 

Grounds for Challenge  

The petitioner had assailed the notification on the following grounds:  

  • Imposing a precondition that the candidates should have appeared for CLAT 2021 PG programme and making selection on the basis of marks secured in CLAT 2021, militates against the fundamental right to equality of opportunity in public employment guaranteed under Article 16 of the Constitution.  
  • The fees in NLUs being much higher than in other Law Colleges, including the fee for participation in entrance exam, i.e., CLAT PG being much higher than the fee for admission tests for other law colleges, the notification discriminates between those having the financial capacity for pursuing their higher studies in National Law Universities and others, who opt to join law colleges with lesser fees. 
  • By the offensive clause, the zone of eligible applicants is reduced to a small fraction, from among the multitude of law graduates aspiring for public employment. 
  • The clause has no rational nexus with the objective sought to be achieved, viz; selection of the most competent from among the law graduates. 

 

Analysis and Findings 

The NTPC argued that employers enjoy a prerogative in fixing eligibility criteria and there is limited scope for judicial interference. Rejecting the aforementioned argument, the Court opined that the prerogative exists unless the act of the employer is found to be arbitrary, unreasonable or having no rational nexus to the objective sought to be achieved. The Court noted that in the case at hand the challenge was not against qualification or eligibility, but focused on the selection process. The challenge was mainly on the ground that, incorporation of the restrictive selection criteria was nothing but indirect discrimination as recognised in Nitisha v. Union of India, (2021) SCC OnLine SC 261.  

Similarly, rejecting the NTPC’s argument that it is inexpedient to conduct selection test across India for filling up ten posts, the Court held that such argument was antithesis to Article 16 of the Constitution; since as long as the Constitution guarantees equality of opportunity to the citizens, the State and its instrumentalities have a corresponding duty to ensure such opportunity to all. 

 

The Court noted that out of the 1721 law colleges in India, only 23 are members of the Consortium of National Law Universities. Another crucial aspect, making the selection process plagued by indirect discrimination is that consideration for selection is confined to candidates who had appeared for CLAT-2021 PG programme alone and even candidates who had appeared for the previous year’s CLAT PG programme and performed well are kept out of the zone of consideration. 

“The process now adopted is more like a walkover to the finals for a chosen few, without competing in the preliminaries.” 

 

Noticing that the selection is based on a test conducted much prior to the issuance of impugned notification, the Court opined that law graduates aspiring for appointment in public sector undertakings cannot be expected to appear for an admission test, hoping that in future that test will be made the criterion for selection and appointment to PSUs.  

 

Lastly, the Court observed that the focus of the test is on academics and not an assessment of the skill set expected of future Law Officers which makes the selection process devoid of any rational nexus with the objective.  

 

Conclusion  

In the backdrop of above, the Court concluded that the impugned notification, insofar as it confines the selection process to only candidates who had participated in the CLAT-2021 PG programme, violated Article 16 of the Constitution.  

However, rather than upsetting the whole selection process, the Court had directed the NTPC to accept the petitioner’s application and conduct a selection test or interview for testing her eligibility for appointment to the notified post. The Court directed that further action with respect to the appointment shall be taken depending on the outcome of such selection test/interview. 

[Aishwarya Mohan v. Union of India, 2022 SCC OnLine Ker 3090, decided on 06-06-2022]  

Appearance by: 

For the Petitioner: Advocate Maitreyi S.Hegde  

For Union of India: SGI Tushar Mehta assisted by Advocate Adarsh Tripathi, ASG S.Manu and Advocate N.S. Daya Sindhu Shree Hari 

*Kamini Sharma, Editorial Assistant has reported this brief.

 

Case BriefsSupreme Court

Supreme Court:  The Division Bench comprising Ajay Rastogi and Bela M. Trivedi, JJ., reversed the impugned judgment of the Madras High Court and held that when the delay in appointment is attributable to the State, it would not deprive the employees of their right to become the member of the Pension Scheme, 1978 merely on the ground that the Scheme was not applicable to their year of appointment, particularly when other candidates who participated in the common process of selection were availing the same.

The Court remarked,

“The premise on which the High Court has proceeded is not sustainable for the reason that the appellants along with other applicants had participated in the self-same selection process pursuant to advertisement dated 9th September 2001”

Background

The undisputed facts of the instant case were that 53 vacancies for Assistant   Public   Prosecutor   Grade-II were advertised by the Tamil Nadu Public Service Commission in the year 2001.   After undertaking the process for selection, 51 persons, including those who were lower in order of merit to the appellants, were appointed by the Government by order dated 24-09-2002.

Pertinently, the names of the appellants were withheld for want of further verification.   The   Commission on verification granted clearance to both the appellants and intimated the same to the State Government on 03-09-2002 (much before the appointments were made on 24-09-2002).   Despite all the formalities being completed, without any reasonable cause or justification, the State Government had withheld the appointments of the appellants, and finally, both the appellants were appointed on 23-08-2005 and 23-04-2004 respectively.

Meanwhile, vide notification dated 06-08-2003, an amendment was made under the Tamil Nadu Pension Rules, 1978. Pursuant to which the State Government introduced a new Contributory Pension Scheme applicable to the Government employees who were recruited on or after 01-04-2003.

Issue Involved

The grievance of the appellants was that their names were cleared by the Commission much earlier than the date of appointment of the other 51 candidates by the order dated 24-10-2002, but the State Government failed to include their names while appointments of other selected candidates, including those who were lower in order of merit.

Therefore, the appellants contended that their names were withheld for two-three years by the State without any reasonable cause/justification, and the delay in appointments could not be attributable to them in any manner. The appellants argued that because of their later appointments, the Government had denied them the benefits of the Scheme, 1978 which was applicable to the employees appointed on or before 01-04-2003.

Analysis and Findings

The Court observed that when those who are lower in order of merit to the appellants were appointed and no justification had been tendered by the State as to why the names of the appellants were withheld for two-three years, the delay in making appointments could not be held to be attributable to the appellants in any manner.

Hence, the Court found that in the given circumstances, when all other candidates who had participated along with the appellants were appointed on 24-09-2002 including those who were lower in the order of merit, there was no reason for withholding the names of the appellants. The Court held,

“Merely because they were appointed at a later point of time, would not deprive them of claiming to become a member of Tamil Nadu Pension Rules, 1978, which is applicable to the employees who were appointed on or before 1st April, 2003.”

In light of the above, the Court set aside the finding recorded by the High Court. The State was directed to treat the appellants to be a member of the Tamil Nadu Pension Rules, 1978 for all practical purposes and benefits as members of the Rules, 1978 to which the appellants were entitled, including retiral benefits.  [P. Ranjitharaj  v. State of Tamil Nadu,  2022 SCC OnLine SC 508, decided on 25-04-2022]

Kamini Sharma, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and BV Nagarathna, JJ has held that as per Rule 16 of the Andhra Pradesh Direct Recruitment for the post of Teachers (Scheme of Selection) Rules, 2012, a candidate does not have right to claim any appointment to the post which remained unfilled in absence of provision for waiting list.

In the case at hand, the selection process was carried out by the State of Andhra Pradesh for recruitment of teachers. 33 posts were notified and therefore the recruitment process was started for the notified 33 vacancies. The merit list/select list of 33 candidates was published.  However, one of the selected candidates did not appear for counselling and therefore, one post remained vacant. The appellant being the next meritorious candidate, claimed the appointment to the unfilled post.

While the A.P. Administrative Tribunal allowed the said claim, the Andhra Pradesh High Court set aside the order passed by the Tribunal and held that considering the relevant statutory provisions and the Guidelines for the purpose of preparation of the select list, the appellant shall not have any claim to the post, which remained unfilled, as there was no provision for the waiting list.

On a fair reading of Rule 16 of the Andhra Pradesh Direct Recruitment for the post of Teachers (Scheme of Selection) Rules, 2012 read with the Guidelines referred to hereinabove, the Supreme Court observed that once the final selection list is prepared, there shall be no waiting list and posts, if any, are unfilled for any reason whatsoever, shall be carried forward for future recruitment as per sub-Rule (5) of Rule 16 of the Rules, 2012.

Hence, as there was no requirement of preparation of a waiting list, the appellant claiming to be the next in the merit cannot claim any appointment as his name neither figured in the list of the selected candidates nor in any waiting list as there was no provision at all for preparation of the waiting list. Sub-rule (5) of Rule 16 is very clear. Therefore, the post that remained unfilled due to one of the candidates in the final list did not appear for counselling and/or accepted the employment has to be carried forward for the next recruitment.

The Court held that,

“In absence of any specific provision for waiting list and on the contrary, there being a specific provision that there shall not be any waiting list and that the post remaining unfilled on any ground shall have to be carried forward for the next recruitment. The appellant herein, thus, had no right to claim any appointment to the post which remained unfilled.”

[Vallampati Sathish Babu v. State of Andhra Pradesh, 2022 SCC OnLine SC 470, decided on 19.04.2022]

*Judgment by: Justice MR Shah

Counsels

For appellant: Senior Advocate V. Mohan

For State: Advocate Mahfooz Ahsan Nazki

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Division Bench of Sanjaya Kumar Mishra, CJ. and Ramesh Chandra Khulbe, J. allowed a petition which was filed by an aspirant seeking a direction to respondents to allow the petitioner to appear for the mains examination of the Assistant Conservator of Forest.

The petitioner had applied for the post of Assistant Conservator of Forest, and in pursuance of the application, she was allowed to appear in the preliminary examination. Subsequently, she qualified the preliminary examination. As per the requirement of the advertisement, the petitioner was supposed to deposit the requisite fee and documents for the main examination by 01-02-2020.

The Uttarakhand Public Service Commission (the Commission) had issued two advertisements and keeping in mind the second one the Court had passed an order directing the petitioner to provisionally appear in the mains however it was directed that result of the petitioner shall be declared only after seeking a prior permission of this Court. Result of the petitioner was filed in this Court in a sealed cover, and this Court recorded that the petitioner had passed the main examination as per the result produced by the respondent-Commission.

Counsel for the petitioner submitted that appropriate directions may be given to the Commission to publish the result and proceed with the process of selection.

The Court was of the view that if the petitioner had qualified the preliminary examination, and on some technical ground her application was rejected by the Commission, and denied her the chance to appear in the main examination, and by virtue of the order passed by this Court in the interim, as quoted above, she has appeared in the examination, and has come out successful, then in the interest of justice and also in the interest of competition, the result should be declared by the Commission considering the decision dated 17-12-2019 of the Supreme Court in Petition for Special Leave to Appeal (C) No. 29799 of 2019.

Writ petition was allowed with the direction that the respondent-Commission shall declare the result of the recruitment process, as early as possible, treating the petitioner to be a qualified candidate to sit in the main examination, and proceed further with the same, and complete the same within a reasonable time.[Vibhu v. Uttarakhand Public Service Commission, Writ Petition (S/B) No. 178 of 2020, decided on 23-03-2022]

Counsel for the petitioner: Mr Abhijay Negi

Counsel for the respondent: Mr B.D. Kandpal

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gujarat High Court: Biren Vaishnav J. while deciding on a petition under Art 226 of the Constitution pertaining to prayer of the petitioner to quash his unfit certificate dated 25-01-2022, gave an order dismissing the petition.

The petitioner was declared colour blind and hence unfit for the post of Electrical Assistant by Jamnagar Civil Hospital & Civil Hospital, Ahmedabad. The Court placed reliance on the decision by its decision in Special Civil Applications No. 6217 of 2021 with 8611 of 2020 on 08-02-2022 where it was observed that colour blindness is not a disqualification included in the standards of physical fitness but after examining the nature of duties of Electrical Assistant, he has to deal with live wires, especially during the installation where the colour of the wires is of prime importance. The relied decision justified the denial of appointment to the post of Electrical Assistant.

Therefore, the Court found no fault with the Corporation’s decision of issuing the unfit certificate and the petition was subsequently dismissed.[Bhavesh Khimabhai Pandit v. State of Gujarat, R/Special Civil Appl. No. 2916 of 2022 decided on 11-02-2022.]

Appearance:

For Petitioner: Ms Shubha B. Tripathi

For Respondent: Mr Kurven Desai, Asstt. Govt. Pleader/PP

Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Meghalaya High Court: Sanjib Banerjee, CJ. while deciding in the matter between groups of persons in the Meghalaya Civil Service and the Meghalaya Police Service, pertaining to seniority between or among them, disposed the writ petition in favour of petitioners.

A combined examination was conducted for recruitment (advt, Nov 22, 2006) into the MCS and MPS by the State Public Service Commission. List of 74 successful candidates was released on 07-09-2010. It was observed by the Court that it may not always be possible to fill up all reserved seats since adequate numbers of candidates from the reserved categories may not be available. In such situation the vacant seats are carried forward to be filled in next appointment process as per the law and the merit list holds its value for a prescribed time.

The private respondent was appointed on 08-05-2012 from the merit list of 2010. A merit list was prepared clubbing all recruited in 2010 and 2012. This step was termed “patently absurd and completely without any element of rationality or logic” by the High Court. Furthermore, it was observed that “A person who has been recruited or appointed earlier in point of time than another in the same post can never be equated with the person appointed later even to the same post.”

The State claimed that seniority between the persons who underwent the process of examination together has to be determined, irrespective of when such persons may have been appointed as per Rule 16(4) of the Meghalaya Civil Service Rules, 1975. The same was held irrelevant in the present circumstance by the Court. Also it was held that the seniority in a particular post, in a sense, indicates who had occupied that post earlier. The Court allowed the writ petition by holding that “the 2010 recruits to the entry-level post have to be regarded as senior to the 2012 recruits to the same entry-level post, irrespective of whatever future considerations may arise in determining their cases for promotion to the next level.”[Winje Rosalie G. Momin v. State of Meghalaya, 2022 SCC OnLine Megh 10, decided on 10-02-2022]

Appearances by:

For the Petitioner/Appellant(s) : Mr AS Siddiqui, Sr.Adv with Mr AG Momin

For the Respondent(s) : Mr ND Chullai, AAG with Ms R Colney, GA Mr K Paul, Sr.Adv with

Mr S Thapa, for R/2

Dr. N Mozika, Sr.Adv for R3-9, 11-16

Suchita Shukla, Editorial Assistant has reported this brief.

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

Andhra Pradesh High Court: In a significant case wherein, a transgender had approached the Court seeking benefit of reservation for appointment in police department, M. Satyanarayana Murthy, J., denies to issue direction to the State in favour of the petitioner. The Bench, however, remarked,

 

“The State is unconscious of the directions issued by NALSA and failed to provide a specific column meant for gender identity for transgender in the proforma of application in the Notification dated 01.11.2018 and did not provide any reservation to transgenders, as they are socially and educationally backward and not in a position to compete with ordinary men and women.”

 

Factual Matrix

In the instant case, one Matam Gangabhavani, a transgender approached the Court seeking to declare Notification vide Rc.No.216/R&T/Rect.1/2018 dated 01-11-2018 as illegal, arbitrary and violative of Articles 14, 15, 19 and 21 of the Constitution as it did not make any provision for reservation of appointment of transgender persons contrary to the decision of the Supreme Court in National Legal Services Authority v. Union of India, (2014) 5 SCC 438. The petitioner also urged for a direction to the respondents-Police Recruitment Board to make appropriate provision for transgender persons and further direct the respondents to appoint the petitioner on the post of Stipendiary Cadet Trainee Sub-Inspector of Police on the vacant post, kept apart for the petitioner in terms of High Court order dated 13-02-2018.

 

The petitioner, a male by birth, underwent Sexual Reassignment Surgery in the year 2003. The case of the petitioner was that pursuant to the recruitment notification, the petitioner applied for the post of Stipendiary Cadet Trainee, however since there were only two categories provided for disclosure of gender namely, “Male” and “Female” the petitioner was forced to mention identity as female while registering for the examination.

 

Though, the petitioner appeared for the first round of recruitment process i.e Preliminary Written Test, could not obtain minimum required marks. Therefore, the petitioner claimed benefit of reservation by relying on the decision of NALSA v. Union of India (2014) 5 SCC 438 by contending that there is reservation for various categories of castes, yet no reservation is provided for transgenders category; despite the transgenders being the most disadvantaged class who cannot compete with male or female genders. Finally, it was contended that, when the petitioner was the sole transgender appeared for the examination, though identifying as female, the petitioner must be selected by providing reservation in the light of Transgender Persons (Protection of Rights) Act, 2019.

 

Case before Central Administrative Tribunal

The petitioner filed O.A.No.23 of 2019 before Andhra Pradesh Administrative Tribunal challenging the impugned Notification, however the same was dismissed on the following grounds:

“a) That the recruitment as per the notification is being proceeded with respect to men and women vacancies only;

b) The notification is not a general notification for applications from all gender and that the notification is gender specific;

c) When the notification for recruitment is gender specific, a transgender person is not entitled to compete for the said post along with men and women.

d) The reliefs claimed in O.A.No.23 of 2019 relate to decisions to be taken by the Government concerned in the Constitution of India as well as specific laws relating to recruitment and appointment to public post.”

 

Observations and Opinion

Observing that concept of “proportional equality” expects the States to take affirmative action in favour of disadvantaged sections of the society within the legal framework of liberal democracy, the Bench stated that the petitioner being a transgender was entitled for proportional equality as the State is expected to take affirmative action in favour of disadvantaged section of the society, and the transgenders are cursed by everyone; living in distressed condition and are being put to harassment in different ways, both physically, mentally and sexually by different persons. The Bench added,

“More so, their number is minimum in the State, but they are not being provided proportional equality in the employment and are totally neglected by the State without providing even a column in the application form for gender identity of transgender, thereby, it amounts to denial of an opportunity in employment treating them unequals with men and women.”

 

Therefore, the Bench held that such discrimination of transgender from men and women could be said to be arbitrariness, being opposed to reasonableness, and antithesis to law. Hence, the Bench stated, failure to provide sufficient opportunity in the employment by providing a specific column for identity of third gender in all employment notifications, treating them as equals with men and women and failure to provide employment to them, though they are eligible is nothing but arbitrariness in the State’s action.

“Though, transgender is a person recognized in the epics, the lawmakers, including the Constitutional framers did not take note of their existence and treatment of transgenders on par with others.”

 

Whether the Notification was Illegal and Arbitrary?

Since the impugned Notification was issued based on the subsisting rules of reservation in the State, strictly adhering to the subsisting rules, the Bench held that the notification could not be declared as illegal and arbitrary. Even to construe that the respondent violated the direction issued by the Supreme Court in NALSA v. Union of India (2014) 5 SCC 438, the direction was only to take steps for providing reservation to transgenders based on their social and educational backwardness, it was only a positive obligation on the State and in the absence of any steps taken by the State, failure of its instrumentalities to provide reservation to transgenders did not make the notification impugned in this writ petition invalid. At best, such failure may attract contempt being filed before the competent court.

Hence, the Bench held that there was no ground to declare the impugned notification as illegal or arbitrary.

 

Analysis and Findings

In NALSA v. Union of India (2014) 5 SCC 438., the Supreme Court had directed the Centre and State Governments to take steps to provide reservations to transgenders in employment and to take steps to treat the transgenders as Socially and Educationally backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. Hence, the direction issued by the Supreme Court was only to the extent of taking steps to treat transgenders as socially and educationally backward classes of citizens, but not for creating reserving particular percentage of posts to transgenders.

 

Though a clarification was issued by the Principal Secretary to Government, Home (Legal.II) Department vide Memo.No.830231/Legal.II/A1/2020 dated 29-09-2020, for appointment of meritorious, eligible transgender person either against a woman vacancy or man vacancy, based on merit, since there are no reservations for transgenders, the Bench held that the aforementioned Memo would not extend any such benefit to the transgender persons in terms of the judgment in NALSA v. Union of India (2014) 5 SCC 438.

 

Differentiating the case of K. Pritika Yashini v. Tamil Nadu Uniformed Services Recruitment Board, 2015 SCC OnLine Mad 11830, wherein a minor relaxation was given to the transgender woman who had qualified in all the tests, the Bench stated that the same had no application to the case of the petitioner for the reason that the petitioner did not qualify herself even in the preliminary examination, having secured 28% in Paper-I and 21% in Paper-II. Opining that if, for any reason, the petitioner secured marks and got through the preliminary examination and if there is any variation in the physical tests, the principle laid down in the above judgments could be applied, the Bench stated,

“The intellectual levels of men, women and transgender may vary to a little extent. But the Rules did not permit appointment of transgender without securing minimum qualifying mark.”

 

Further, even the Transgender Persons (Protection of Rights) Act, 2019 and Transgender Persons (Protection of Rights) Rules, 2020 are silent regarding provision for reservation in public employment or any government establishments to transgender persons. Therefore, the Bench held that the Court could not issue any direction to provide reservation to the petitioner based on sex or social status, more so, when a direction was issued by the Supreme Court to extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

 

Verdict

Considering that the direction issued by the Supreme Court in NALSA v. Union of India (2014) 5 SCC 438,  is suffice to provide reservation in cases of admission in educational institutions and for public appointments, the Bench refused to issue any direction to the State to provide reservations to transgender. However, the directions were made to the State to study the representation of transgenders for public employment, their number in the State, benefits extended to them without discriminating from men and women and provide necessary reservations if they are not represented adequately in the public employment.

Further, since the minimum marks were not fixed based on gender, but based on social status, more particularly, their backwardness and inadequacy of their representation in the public employment, the Bench denied to issue direction to the respondents for selection of the petitioner as Stipendiary Cadet Trainee Sub-Inspector. Consequently, the petition was dismissed. [Matam Gangabhavani v. State of Andhra Pradesh, 2022 SCC OnLine AP 200, decided on 21-01-2022]

Appearance by:

For the Petitioner: M Solomon Raju, Advocate

For the State: Additional Advocate General II

Kamini Sharma, Editorial Assistant has out this report together

Jharkhand High Court
Case BriefsHigh Courts

Jharkhand High Court: S.N. Pathak, J., rejected the petition filed by a civil services candidate, who was declared unsuccessful in prelims examination due to darkening wrong last digit of roll number in OMR sheet. The Bench stated,

“May be the petitioner has not intentionally darkened digit 6 instead of 8, but sympathy has no place in the eyes of law. The law will prevail in view of the terms and conditions as mentioned in the Advertisement, Admit Card and that of the Rules framed by the JPSC.”

The petitioner had approached the Court with the grievance that though she had obtained 240 marks in the Preliminary Test in Jharkhand Combined Civil Services Competitive Examination, 2021, whereas the cut off marks obtained by the last selected candidate in Scheduled Tribes category was 230, she was not allowed to appear in the Mains Examination to be conducted by the respondent-Jharkhand Public Service Commission (JPSC). The petitioner contented that if no interference is made by the Court her career would be spoiled.

On the contrary, the JPSC submitted that the petitioner had tried to make out a case which had no legs to stand as OMR Answer Sheet of General Studies Paper-II of the petitioner was rejected by the OMR Scanning Machine due to wrong darkening/shadowing of Roll Number filled up by the petitioner herself and it was fault on part of the petitioner in not adhering to the guidelines/ instructions in the Advertisement and Admit Card.

After perusal of the Admit Card of the petitioner and OMR sheet of the examination, the Bench observed that in the place of last digit of roll number i.e. 8, the petitioner had wrongly circled in the OMR sheet the digit 6. Further, Clause 4 of the advertisement clearly stipulates:

 “4. OMR (Optical mark recognition) answer sheet will be processed electronically. As such invalidation of answer sheet due to incomplete / incorrect filling / darkening of the bubbles on OMR sheet, will be the sole responsibility of the candidate. OMR Scanning machine will reject OMR sheet in which Roll No and Booklet series are not properly and correctly (in word or number or both as required) darkened or fillup in OMR sheet.”

Admittedly the petitioner had wrongly darkened the last digit of her roll number, which was fault on her part and as per instruction in the Admit Card, such mistakes on part of the candidate, cannot be rectified by the Commission and according to the arguments advanced by the JPSC, such correction would lead to manipulation in the OMR Sheet.

Thus, it is evident that the conditions/instructions mentioned in clause-4 of the Admit Card had not been fulfilled by the petitioner herself and as such, case of the petitioner had rightly been rejected by the Commission for appearing in Mains Examination.

Further, as per the record the petitioner had obtained 140 marks only in totality whereas the marks obtained by the last selected candidate under the Scheduled Tribes category was 230. Thus, plea raised by the petitioner was rejected on this score also. The Bench stated,

“Petitioner cannot take the plea to add marks of second paper of General Studies which could not be evaluated or scanned by the OMR machine due to mistake or laches on part of the petitioner herself by darkening wrong roll number.”

Hence, opining that direction to correct the error would amount to manipulation in the OMR Sheet, the Bench stated that a candidate is supposed to follow the instructions and such mistakes are not expected by the aspirants appearing in the State Civil Service Examination. Accordingly, the instant petition was dismissed. [Aditya Isha Prachi Tirkey v. Jharkhand Public Service Commission, 2022 SCC OnLine Jhar 28, decided on 18-01-2022]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Rajeeva Sharma, Sr. Advocate along with Aishwarya Prakash, Advocate

For the Respondents: Sanjay Piprawall, Advocate

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: V.G.Arun, J., held that the practice of confining selection process to CLAT PG-2021 candidates only for the post of Assistant Law Officer at NTPC was prima facie discriminatory. However, without expressing anything further on the matter the Bench had adjourned the matter for further hearing with the direction to the Central Government and NTPC to file a detailed counter affidavit in that regard.

The petitioner was an aspirant to the post of Assistant Law Officer notified by the National Thermal Power Corpn. Ltd. (NTPC) and was presently pursuing her studies in LLM at the Cochin University of Science and Technology. Though, the petitioner had the notified qualification of 60% marks in Bachelor’s Degree in Law and registration with the Bar Council, she was aggrieved by the discriminatory manner in which the selection process was being confined to candidates who had appeared for CLAT-2021 PG programme.

The petitioner submitted that, being a public sector undertaking falling within the definition of Article 12 of the Constitution, the NTPC could not shut out the chances of persons like the petitioner, merely for the reason that she was pursuing her PG programme in a University that was not part of the consortium of National Law Universities. The petitioner argued that there was no nexus between the objectives sought to be achieved by imposing such a condition, since CLAT exam is meant for assessing academic brilliance of students, whereas the NTPC was seeking to select the best among legal professionals. Reliance was placed by the petitioner on the decision of the Supreme Court in Lt. Col. Nitisha v. Union of India, 2021 SCC online SC 261, to contend that the imposition of such restrictive condition amounts to indirect discrimination.

The question for consideration before the Bench was whether, after having prescribed LLB degree from any recognised Indian University with 60% marks as qualification, the eligibility criteria could be restricted to candidates who had appeared for CLAT-2021 PG Programme and CLAT score made the basis for selection? Also, whether persons having requisite qualifications could be compelled to appear for the CLAT PG Programme as a condition precedent for accepting their applications?

Considering the above, the Bench opined that prima facie the condition was discriminatory. The Bench stated,

“Even if the CLAT exam conducted by the Consortium of National Law Universities is capable of selecting the brightest students; that is no justification for thwarting the career prospects of law graduates like the petitioner.”

Consequently, the Bench directed the Government to accept the application submitted by the petitioner, subject to the final outcome of the petition. On being pointed out that applications are to be submitted online and the system may not accept the applications which are not in conformity with the notification, the Bench further directed that the petitioner shall be permitted to submit her application by logging on to the website of NTPC and if the application is not accepted by the system, that can be brought to the notice of the Court. The matter was posted on 20-02-2022 for further hearing. [Aishwarya Mohan v. Union of India, 2022 SCC OnLine Ker 78, order dated 05-01-2022]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Maitreyi Sachidananda Hegde, Advocate

For the Union of India: S.Manu, ASG and N.S.Daya Sindhu Shree Hari, Central Government Counsel

Tripura High Court
Case BriefsHigh Courts

Tripura High Court: Arinadm Lodh, J., decided in the matter wherein four of the petitioners were holding the post of Chief Inspector under the Food, Civil Supplies & Consumer Affairs Department, Government of Tripura. Respondents had undertaken an exercise to fill up the post of Tripura Civil Services Grade-II from various feeder posts. The Department had recommended the names of the petitioners to the Tripura Public Service Commission for consideration of their promotion which was also approved by the General Administration (Administrative Reforms) Department. Tripura Public Service Commission had decided not to consider the names of the petitioners to be eligible for participation in the selection process since the recruitment rule was silent about the post of Chief Inspector of Food, Civil Supplies & Consumer Affairs Department for consideration of promotion to the post of TCS-Grade-II.

The Court observed that there is a vacuum in the recruitment rule as it is silent about the promotional avenues of the Chief Inspector of Food, Civil Supplies & Consumer Affairs Department, Government of Tripura. Indubitably, the post of Chief Inspector is the promotional post of Inspector. TCS, Grade-II is the higher post of the post of the Chief Inspector. The Court further opined that Department has come forward and being very concerned about the recruitment rules in this regard that it only prescribes Inspector and is silent about the Chief Inspector, though, the post of Chief Inspector is the promotional post of Inspector and their names are to be first recommended for promotion to the post of TCS-Grade-II, the State-respondents being conscious about the fact has recommended the names of the petitioners to the TPSC for consideration of their promotion to the post of TCS, Grade-II along with Inspectors.

The Court further that the State-respondents has not committed any illegality in recommending the names of the petitioners holding the post of Chief Inspector of Food, Civil Supplies and Consumer Affairs Department, Government of Tripura and it will be the duty of the Tripura Public Service Commission to act in consonance with the said recommendation for consideration of the names of the petitioners for promotion to the post of TCS, Grade-II. The Court directed the TPSC to act in accordance with the recommendation made by the State-respondents to fill up the post of TCS, Grade-II from both the Chief Inspector and Inspector.

[Ratan Mani Debbarma v. State of Tripura, 2021 SCC OnLine Tri 537, decided on 18-10-2021]

Suchita Shukla, Editorial Assistant has put this report together 

Counsels

For the Petitioner(s) : Mr Somik Deb, Mrs Riya Chakraborty and Ms Swarupa Chism

For the Respondent(s) : Mr P.K. Dhar, Sr. G.A. Mr K. De, Addl. G.A. ` Mr Raju Datta

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Manoj Kumar Tiwari, J., decided a petition which was filed by the petitioner challenging the order dated 17-04-2021 passed by Dean (Academics), AIIMS, Rishikesh wherein petitioner’s representation, made pursuant to the order of this Court passed in WPMS No.794 of 2021, had been rejected.

Petitioner had applied for admission in PG Diploma Course, pursuant to a notification issued by AIIMS Rishikesh in the month of August, 2020 sand election for admission to said PG Diploma course was to be made through a competitive examination. He was one of the 13 candidates shortlisted for the interview; he appeared in the interview but was not given admission. There were 05 seats available in the said course namely, PG Diploma in Respiratory Medicine, but only 04 seats were filled and since petitioner was the 5th candidate in order of merit, therefore, he had filed the writ petition which was disposed of by order dated 01-04-2021 with liberty to the petitioner to make a representation and the Competent Authority in AIIMS, Rishikesh was directed to take decision thereupon within a period of two weeks. Dean (Academics), AIIMS, Rishikesh had rejected petitioner’s representation vide order dated 17-04-2021 thus the instant petition was filed.

The Court observed that out of the 13 short-listed candidates, only 12 appeared for interview and out of those 12 candidates, 04 were given admission in PG Diploma (Respiratory Medicine) and 1 seat was still lying vacant and it was also an admitted position that the petitioner stands 5th in order of merit in the selection for admission to the aforesaid course. The petitioner was not given on the ground that he had scored only 17.47 percentile in the selection process but the Court observed that the impugned order is silent as to whether there was any condition regarding cut-off marks stipulated before commencement of selection process and in this situation the admission cannot be denied.

The Court set aside the impugned order dated 17-04-2021 and directed the Dean (Academics), AIIMS, Rishikesh to reconsider petitioner’s representation on merits and pass a speaking order in accordance with law.

[Laxman Singh Brijwal v. Union of India, 2021 SCC OnLine Utt 485, decided on 19-05-2021]

Suchita Shukla, Editorial Assistant has put this report together 

Counsel for the petitioner: Mr Pankaj Tangwan

Counsel for the respondents: Mr Rakesh Thapliyal, Assistant Solicitor General assisted by Mr Lalit Sharma

Chhattisgarh High Court
Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of P. R. Ramchandra Menon and Parth Prateem Sahu, JJ. sets aside the impugned order and allowed the appeal.

Background

The facts of the case are such that a combined notification (Geology and Mining Department and Panchayat & Rural Development Department and Public Works Department i.e. PWD) governed by 2008 Rules, 2011 Rules and 2016 Rules respectively was issued for filling up the posts of Draughtsman/Assistant Draughtsman (Civil) specifying the eligibility conditions and prescribed qualifications in terms of the relevant rules. The test was conducted, and a provisional list of successful candidates was declared when it was noticed that the selected candidates were not having the ‘prescribed qualifications’ under the Rules and the Advertisement, but were having much higher qualification of Degree or Diploma in Civil Engineering and such other subjects. A representation to the Board followed by a petition was filed but to no avail. It was held that the relevant Rules and Advertisement did not stipulate any higher qualifications of Diploma, Degree or Post Graduation in the subject concerned, but for stipulating ITI, it was decided that the persons with higher qualifications would not be considered and included in the list of eligible candidates. But nothing was mentioned as to why the same analogy was not applicable in the case of the PWD. The learned Single Judge held that the higher qualification of Degree/Post Graduate Degree in Civil Engineering would presuppose the lower qualification as per advertisement, in view of the law declared by the Apex Court in Jyoti K.K. v. Kerala Public Service Commission, (2010) 15 SCC 596. The answer given in the ‘positive’ by the learned Single Judge, dismissing the writ petition challenging the proceedings is put to challenge by the instant appeal.

Submissions

Counsel for the appellants Mr Prateek Sharma submitted that having directed the Government to give effect to the undertaking that they would modify the select list in respect of the Mining & Geology Department, by excluding the higher qualified candidates and confining it to the candidates having the specific qualifications as prescribed in the Rules and notified in the Advertisement, the learned Single Judge went wrong in not extending the said benefit in the case of the PWD involving exactly similar Rules and the similar qualifications as given in the advertisement, which in fact has resulted in differential treatment. This has resulted in patent arbitrariness and discrimination on the parts of the State, violating Article 14 of Constitution of India.

Counsel for the respondents submitted that the qualification prescribed in the Advertisement is only the ‘minimum qualification’ and that there is no bar either in the Rules or in the Advertisement that the persons with higher qualifications will not be considered. It was further submitted that the Rules do not place any bar in selecting candidates with higher qualification and that it is sustainable in view of the law declared by the Supreme Court in Jyoti K.K. (supra) that possession of higher qualification pre-supposes lower qualification. It was also submitted that there is absolutely no merit in the appeal as all the candidates placed in the list are candidates who have proved their merit by virtue of their qualification and performance.

 Scope of the verdict in Jyoti K.K (supra)

The Supreme Court in Jyoti KK. (supra) held that if the candidate has acquired the higher qualification in the same faculty, such qualification can certainly be stated to presuppose acquisition of the lower qualification prescribed for the post.

The Court observed that the decision was rendered with reference to a statutory rule, particularly Rule 10(a) (ii) of the 1956 Rules which enabled reckoning of higher qualification which presupposes the acquisition of lower qualification prescribed for the post as sufficient for appointment to the said post.

The matter came up for consideration in Zahoor Ahmad Rather v. Sheikh Imtiyaz Ahmad, (2019) 2 SCC 404 wherein it was held that the verdict passed by the Apex Court in Jyoti K.K. (supra) was on the basis of a specific enabling rule i.e. Rule 10(a) (ii) of the 1956 Rules, where the higher qualification presupposed acquisition of lower qualification and in the absence of any statutory rule in this regard, such inference cannot be drawn.

Observations

The Court observed that no rule in the ‘2016 Rules’ can be referred enabling to reckon the ‘higher qualification’ as well, which presupposes the acquisition of lower qualification for appointment to the post of Assistant Draughtsman in the PWD. It was observed that because of the absence of any such enabling rule to reckon the higher qualification presupposing the lower qualification for recruitment in the Mining & Geology Department, the Government has already taken a decision to modify the list by excluding the candidates having higher qualifications and to confine the same only to the specific qualification as contained in the Rules/Notification. Despite the fact that the rule position is exactly same in the PWD (as in the case of Mining & Geology Department), such a course was not pursued by the Respondent/ Government which results in blatant differential treatment.

Decision

In the above facts and circumstances, we do not find any justification for the Respondents to have provided a differential treatment for recruitment to the post of Assistant Draughtsman in the ‘PWD’, unlike the course sought to be pursued in respect of the ‘Mining & Geology Department’, having exactly similar rules governing the eligibility conditions/qualifications as notified in the advertisement.

In view of the above, appeal was allowed and impugned decision was set aside.[Praveen Kumar Rajak v. State of Chhattisgarh,  2021 SCC OnLine Chh 648, decided on 18-03-2021]

Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The 3-Judge Bench comprising of L. Nageswara Rao, Indu Malhotra* and Vineet Saran, JJ heard the petition challenging the decision of Maharashtra government to appoint 636 additional candidates without consulting MPSC (Maharashtra Public Service Commission. The Bench stated,

“It is well-settled in service jurisprudence that the authority cannot fill up more than the notified number of vacancies advertised, as the recruitment of candidates in excess of the notified vacancies, would be violative of Articles 14 and 16 (1) of the Constitution of India.”

On 02-06-2016, government of Maharashtra issued a requisition to the MPSC to conduct the Limited Departmental Competitive Examination (“LDCE”) for selection of candidates to the post of Police Sub Inspector. The Home Department had notified 828 vacancies, out of which 642 were from the open category and 186 were from various reserved categories for promotion to the post of Police Sub-Inspector. MPSC recommended the names of 828 candidates, out of which 642 were from the open category, who had secured 253 marks and above; and 186 candidates were from the various reserved categories, who had secured 230 marks and above in departmental examination.

Meanwhile, government vide G.R. dated 22-04-2019 took a policy decision to accommodate 636 additional candidates who had secured more than 230 marks in the LDCE – 2016 examination which was objected by MPSC, contending that,

“As per Article 320 of the Constitution, the MPSC has the power to appoint candidates to various posts in the State. The government had taken the decision without consulting MPSC, which was a serious irregularity, and would hamper the functioning of the Commission.”

Relevant rules governing promotion and recruitment were Rule 4 and 5 of Police Sub-Inspector (Recruitment) Rules, 1995:

Rule 4: Appointment to the post of Police Sub- Inspector by promotion, selection on the basis of limited departmental examination and nomination shall be made in the ratio of 25:25:50.

Rule 5: Notwithstanding anything contained in these rules, if in the opinion of Government, the exigencies of service, ‘so requires, Government may with prior consultation with MPSC make appointment to the post of Police Sub-Inspector in relaxation of the ratio prescribed for appointment by promotion selection on the basis of limited departmental examination or nomination.”  

In the above background, various Original Applications were filed by candidates to challenge the Policy decision dated 22.04.2019 on the ground that the additional 636 candidates who were directed to be accommodated to the post of Police Sub-Inspector, was contrary to the Recruitment Rules, and would have the inevitable effect of distorting the ratio for recruitment through the Limited Departmental Examination. The Tribunal vide interim Order directed that Status Quo be maintained with respect to the 636 additional candidates which was vacated by the Tribunal on the request of respondents.

Aggrieved by the order of the Tribunal, the appellants approached Bombay High Court in writ jurisdiction. The High Court, however rejected the petition and  issued a direction to the State Government to send the additional 636 candidates for the training of 9 months; and, requested the Tribunal to dispose of the pending O.A. within the same period.

Observing Rule 5 of Recruitment Rules, 1995, the Bench stated that, government would be required to establish before the Tribunal as to whether there were any extra-ordinary circumstances which have warranted the exercise of power, which may be resorted to only in rare and exceptional circumstances. The Bench further observed,

The impugned G.R. seeks to fill up double the number of vacancies which were notified for the LCDE – 2016 by the Circular dated 27-06-2016 which is violative of Arts. 14 and 16 (1) of the Constitution. The Bench held,

“Promotional prospects of the appellants would be seriously prejudiced; if a block of 636 additional candidates would be appointed as Police Sub-Inspectors over and above the appellants.”

Hence, the Court directed that G.R. dated 22-04-2019 would remain stayed during the pendency of proceedings before the Tribunal. The order of the Tribunal whereby it had vacated the interim Order 18-10-2019, and order of the High Court was set aside. The Tribunal was further directed to decide the pending O.A. within a period of six months at the same time to ensure that the additional 636 candidates were given notice of the pending O.A., to enable them to appear and participate in the proceedings.

[Gajanan Babulal Bansode v. State of Maharashtra, 2021 SCC OnLine SC 57, decided on 05-02-2021]

Kamini Sharma, Editorial Assistant has put this story together 

*Judgment by: Justice Indu Malhotra

Appearances before the Court by

For appellant: Senior Advocate Vinay Navare

For State: Advocate Sachin Patil

Kerala High Court
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]