Cases ReportedSupreme Court Cases

In Part 4 of 2022 SCC Volume 3, read some very pertinent Supreme Court decisions, involving aspects regarding reservation, accountability of social media platforms, service law and more.


Constitution of India — Arts. 14, 15, 16 and 226 — Writ of mandamus in matters of reservation — Scope and limit: Order of High Court directing State Government to increase the percentage of reservation for a particular category, that is, to provide for 3% reservation/quota for sportspersons, instead of 1% provided by State Government, held, beyond its jurisdiction and a grave error. Court cannot issue a mandamus: (i) to provide for reservation or reservation for any particular community even on basis of any quantifiable data brought to its notice, or (ii) to collect quantifiable data to justify their action of not providing reservation. [State of Punjab v. Anshika Goyal, (2022) 3 SCC 633]

Constitution of India — Arts. 19(1)(a) & (2) and Arts. 194 & 105 — Accountability of Social media platforms, for posts made on such platforms by third parties: Extent of accountability of Social media platforms for posts made by third parties to House Committee of State Legislature, determined. [Facebook v. Delhi Legislative Assembly, (2022) 3 SCC 529]

Criminal Law — Public Accountability, Vigilance and Prevention of Corruption — Constitutional Authorities/Functionaries/High Public Offices — Security of Prime Minister of India: Directions issued for  judicial inquiry into breach and lapses as the convoy of PM was stuck on a flyover for around 20 minutes. Records relating to PM’s visit seized and secured. Directions also issued for constitution of Enquiry Committee, terms of reference and stay of ongoing proceedings by Central and State Governments. [Lawyers Voice v. State of Punjab, (2022) 3 SCC 521]

Criminal Procedure Code, 1973 — S. 389: Suspension of sentence by Supreme Court on ground of plea of juvenility taken before Supreme Court for the first time, when warranted, explained. [Sagar Behara v. State of W.B., (2022) 3 SCC 526]

Criminal Procedure Code, 1973 — S. 439 — Bail: Grant of bail without considering relevant aspects and recording reasons is not justified. Law summarised regarding principles for grant of bail and considerations to be balanced therefore. [Manoj Kumar Khokhar v. State of Rajasthan, (2022) 3 SCC 501]

Criminal Procedure Code, 1973 — S. 482 — Failure to exercise quashment power — When not proper: In this case of alleged misappropriation of monies of complainant and others, main allegations are against other co-accused, in the facts and circumstances of the case, it was held that to continue criminal proceedings against both appellant-accused herein would be abuse of process of law and court and unnecessary harassment to appellants. Hence, High Court ought to have exercised its powers and discretion under S. 482 CrPC and ought to have quashed criminal proceedings against appellants. Hence, criminal proceedings under Ss. 406, 420, 467, 468, 471 and 120-B IPC including charge-sheet, quashed and set aside insofar as appellants herein are concerned. [Rekha Jain v. State of U.P., (2022) 3 SCC 497]

Service Law — Pension — Computation/Calculation of pension: In this case, respondent retired after one month of rejoining from leave for about two years without allowances. Cl. 2(2) as modified vide Circular GO (P) No. 230/2012/Fin. dt. 19-4-2012 envisaged that for computing 10 months’ emoluments for purpose of average emoluments in respect of employee who retired from service on or after 1-1-2006 and who during part 10 months drew pay in pre-revised scale, their pay in pre-revised scale was to be enhanced notionally to initial pay drawn in revised scale. For calculating average emoluments as per Kerala Services Rules, if during period of ten months, employee was absent from duty, on leave with or without allowances which qualified for pension, or having been suspended was reinstated in service without forfeiture of service, his emoluments for ascertaining average were to be taken, at what they would have been, had he not been absent from duty or suspended provided that benefit of pay in any officiating post would be admissible only if it was certified that he would have continued to hold that officiating post but for leave or suspension. Thus, part of 10 months not equivalent to past 10 months. Hence, impugned judgment finding fixation of pension @ Rs 19,334 in revised scale justified considering last drawn pay of Rs 46,400 by respondent, calls for no interference. [State of Kerala v. Anie Lukose, (2022) 3 SCC 629]

Legal RoundUpSupreme Court Roundups


Most Read story of the Month


Producing false/fake certificate is a grave misconduct; Dismissal of service justified in such cases

“The question is one of a TRUST. How can an employee who has produced a fake and forged marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention or mens rea. The question is producing the fake/forged certificate.”

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Top Stories


Supreme Court upholds the amendments to the provisions of the Foreign Contribution (Regulation) Act, 2010

“Aspirations of any country cannot be fulfilled on the hope of foreign donation”

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Anganwadi Workers/Helpers entitled to payment of gratuity; ‘Time to take serious note of their plight’

The Anganwadi Workers/Helpers have been entrusted with the important tasks of providing food security to children in the age group of 6 months to 6 years, pregnant women as well as lactating mothers, apart from rendering pre¬school education. And for all this, they are being paid very meagre remuneration and paltry benefits.

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‘Can’t allow mass absorption of over 11,000 workers based on a flawed Report’. SC forms new Committee to put an end to the long drawn LIC versus temporary employees battle

“The dispute is now of an antiquity tracing back to nearly four decades. Finality has to be wrung down on the dispute to avoid uncertainty and more litigation. Nearly thirty-one years have elapsed since 1991. We have come to the conclusion that the claims of those workers who are duly found upon verification to meet the threshold conditions of eligibility should be resolved by the award of monetary compensation in lieu of absorption, and in full and final settlement of all claims and demands.”

Read more…

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Supreme Court stays Delhi’s Jahangirpuri demolition drive

The demolition drive has been launched by Delhi municipal authorities in Jahangirpuri area, which witnessed communal violence recently.

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Lakhimpuri Kheri Violence| ‘Allahabad High Court granted bail in a tearing hurry’; Supreme Court cancels Ashish Mishra’s bail

“Victims cannot be expected to be sitting on the fence and watching the proceedings from afar.”

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Also Read: From investigation till culmination of appeal/revision, victim has right to be heard at every step post the occurrence of an offence


Explainers



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Solitary Confinement of Death Row Convicts: Judicial officer to probe to apprise Supreme Court of ground reality

A appeal was filed before the Court alleging that the appellant had been placed in solitary confinement since 29-10-2006 contrary to the law laid down by the Supreme Court in Sunil Batra v. Delhi Administration(1978) 4 SCC 494. The appellant had relied on the letter addressed by the Medical officer to the Superintendent of Prisons dated 06-11-2011 claiming that ‘the aforesaid prisoner is kept in solitary confinement since his admission to this prison on 29-10-2006’ and further that the petitioner was suffering from ‘psychosis with depression’.

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Mere differential treatment cannot on its own be termed as an “anathema to Article 14 of the Constitution”

The bench of Sanjay Kishan Kaul and MM Sundresh*, JJ has held that when there is a reasonable basis for a classification adopted by taking note of the exigencies and diverse situations, the Court is not expected to insist on absolute equality by taking a rigid and pedantic view as against a pragmatic one.

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Interference with Government Tenders makes the State and its citizens suffer twice. Courts should refrain from staying Government tenders even in case of total arbitrariness

“The Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. The Court does not have the expertise to examine the terms and conditions of the present day economic activities of the State and this limitation should be kept in view.”

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“State cannot hide behind delay & laches to evade it’s responsibility after acquiring land. There cannot be a ‘limitation’ to doing justice”, holds SC; Land Owners get compensated after decades

“While the right to property is no longer a fundamental right, it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.”

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Amalgamation does not necessarily nullify tax assessment as only the outer shell of the amalgamating company gets destroyed but the business and the adventure lives on

It is essential to look beyond the mere concept of destruction of corporate entity which brings to an end or terminates any assessment proceedings.

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SC sets aside Bombay HC’s direction to acquire a land almost 20 years after finalisation of development plan

“Land owner cannot be deprived of the use of the land for years together”

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Is there a policy rewarding public prosecutors for securing death sentence? Supreme Court asks M.P. government in a Suo Motu case

Noticeably, a petition was filed before the Court alleging that the State is granting incentives to public prosecutors on the basis of death sentence awarded in matters prosecuted by them. Assessing the gravity of allegation the Court on 29-03-2022 had issued direction to the Registry to register a Suo Motu case and change the cause title immediately.

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Insertion of meritorious OBC candidates into general category list without disturbing the appointment of general category candidates? Supreme Court strikes balance

The Court was deciding a case where a service matter where upon reshuffling and on insertion of two OBC candidates into general category select list, two general category candidates already appointed and working since long would have been expelled or removed, thereby unsettling the entire selection process.

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Lapse of a long period in deciding appeal cannot be a ground to award disproportionate and inadequate punishment

“Merely on the technical ground of delay and merely on the ground that after the impugned judgment and order, which is unsustainable, the accused have resettled in their lives and their conduct has since been satisfactory and they have not indulged in any criminal activity, is no ground not to condone the delay and not to consider the appeal on merits.”

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Caste can be the starting point for providing internal reservation but not the sole basis

In a case relating to reservation of seats in Educational Institutions, the bench of L. Nageswara Rao* and BR Gavai, JJ has observed that while caste can be the starting point for providing internal reservation, it is incumbent on the State Government to justify the reasonableness of the decision and demonstrate that caste is not the sole basis.

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Can an establishment employing about 8000 workers be shut down for not obtaining Environmental Clearance, even when it acts in compliance with required pollution norms?

“An establishment contributing to the economy of the country and providing livelihood ought not to be closed down only on the ground of the technical irregularity of not obtaining prior Environmental Clearance irrespective of whether or not the unit actually causes pollution.”

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Acquitted in the criminal case but employer still going ahead with the disciplinary proceeding? Read the law laid down by Supreme Court

“The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment.”

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Reduction in stamp duty cannot lead to revenue splitting an instrument into two once it has already been charged under a correct charging provision

After having accepted the deed of assignment as an instrument chargeable to duty as a conveyance under Article 20(a) and after having collected the duty payable on the same, it is not open to the respondent to subject the same instrument to duty once again under Article 45(f), merely because the appellant had the benefit of the notifications under Section 9(a).

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SC allows Tamil Nadu to grant 50% reservation for in-service doctors in Super Specialty Medical Courses

The Court, hence, held that no case was made out for continuing the interim protection which was granted for the academic year 2020-2021 vide interim order dated  27th November, 2020.

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Medical College| Does permission to start post graduate courses for subsequent academic year result in effacing deficiencies found in previous academic year? Supreme Court answers

If an institution is seeking grant of permission for undertaking admissions for the academic session 2022-23, it must fulfill the requirements of minimum standard as on 31st December 2021.

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2006 Meerut Fire Tragedy| Organizers held guilty! 60:40 liability to compensate victims fixed on Organizers & State

The court was dealing with the writ petition preferred by the victims of the fire tragedy which occurred on 10.4.2006, the last day of the India Brand Consumer Show organized at Victoria Park, Meerut, Uttar Pradesh by Mrinal Events and Expositions. The incident claimed the lives of 65 persons and left 161 or more with burn injuries.

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Husband suspects paternity of child; Supreme Court allows DNA test while granting conditional compensation of 30 lakhs to wife if suspicion proves to be wrong

In a case where the husband had disputed paternity of child on suspicion, though the Division Bench comprising of Indira Banerjee and A.S. Bopanna, JJ., directed to conduct DNA test, the Bench granted a conditional compensation of thirty lakhs to the wife if the suspicion proves to be wrong and respondent-husband turns out to be the father of the child.

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Medical Admissions| SC directs allotment of in-service PG seat to Lady Doctor with experience in Madhya Pradesh’s Naxal/Tribal regions

The appellant, a mother of a 5-year-old, has been working as a Medical Officer with the State of Madhya Pradesh on a regular basis for over 11 years. Out of the 11 years of service, she has served for 6 years in District Betul which is a notified tribal district and has served in a Community Health Centre at Katangi in the District of Balaghat for the remaining period.

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Even a single crime committed by a ‘Gang’ is sufficient to prosecute an accused under the Gangsters Act

“The definition clause does not engulf plurality of offence before the Gangsters Act is invoked.”

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Delinquent postal officer voluntarily deposits defrauded amount with interest after detection of fraud. Was he able to escape punishment of removal from service?

“Being a public servant in the post office, the delinquent officer was holding the post of trust. Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee.”

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Appointment of Teachers| Can obtaining a degree in one branch of a subject be considered equivalent to obtaining degree in the subject as a whole?

“As per the settled proposition of law, in the field of education, the Court of Law cannot act as an expert normally, therefore, whether or not a student/candidate is possessing the requisite qualification should better be left to the educational institutions, more particularly, when the Expert Committee considers the matter.”

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It’s time for the University to put an end to ‘Yuddh Kand’ and allow appellant to move from ‘Karm Kand’ to ‘Karm Phal Kand’

“The entire controversy appears to have arisen as a result of the tug of war in the year 2006 between the then Chancellor and the then Vice Chancellor, making the appellant a victim in the line of fire. Unfortunately, the High Court omitted to take note of all this.”

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No right to keep goods and wares at hawking place overnight; Supreme Court dismisses plea of hawker of Sarojini Nagar market

The petitioner was a hawker in the Sarojini Nagar Market, who had approached the Delhi High Court seeking permission to leave his goods and wares at the place of hawking overnight.

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Forum Shopping and Power of High Court u/s 482 CrPC; Supreme Court tells when to convert a civil complaint into criminal case

“Forum shopping has been termed as disreputable practice by the courts and has no sanction and paramountcy in law.”

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Person being the highest bidder deposits sale amount for auction property and obtains injunction against Municipality; SC declares the sale non-est for lacking government sanction

The Court opined that no concluded contract ever came into force and in the absence of any approval granted, no right would accrue.

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2G Spectrum Scam| Supreme Court rejects ex-licensee’s refund demand of Rs 1454.94 crores Entry Fee, holding him faulty as a confederate of fraud

“…as a beneficiary and confederate of fraud, the appellant could not be lent the assistance of this Court for obtaining the refund of the Entry Fee.”

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Candidates can’t claim appointment to unfilled posts in absence of provision for waiting list

“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.”

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Income Tax| If such orders continued to be passed, we will impose substantial costs on Assessing Officer which will be recovered from his/her salary: Read why SC stayed Bombay HC’s order

The Division Bench comprising of M.R. Shah and B.V. Nagarathna, JJ., stayed the impugned order of Bombay High Court wherein the High Court had quashed the assessment order under Income Tax Act, 1961 and had further cautioned that if such orders continued to be passed, the Court will be constrained to impose substantial costs on the concerned Assessing Officer to be recovered from his/her salary.

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Cases Reported in SCC


2022 SCC Vol. 2 Part 4

In 2022 SCC Volume 2 Part 4, read a very interesting decision, wherein a death row convict subjected a 5-year-old girl to rape, killed her by strangulation, and then disposed of her body, tied in a gunny bag, into a stream and the 3-Judge Bench of the Supreme Court finding hope for reformation and rehabilitation commuted his death sentence to life imprisonment.

2022 SCC Vol. 3 Part 1

In a pertinent decision, Supreme Court while rejecting claim for interest the compared it to the Shakespearean character Shylock and remarked,

“…the holder of the Bond has received their ‘pound of flesh’, but they seem to want more. Additional sum in our estimation is not merited as SIBCO has already received their just entitlement and burdening the defendant with any further amount towards interest would be akin to Shylockian extraction of blood from the defendant.”

2022 SCC Vol. 3 Part 2

In 2022 SCC Volume 3 Part 2, read a very interesting case wherein 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, Supreme Court held that mere recommendation of the SP at the initial stage is not sufficient to claim a right for promotion.


 

Case BriefsSupreme Court

Supreme Court: In a service matter where upon reshuffling and on insertion of two OBC candidates into general category select list, two general category candidates already appointed and working since long would have been expelled or removed, thereby unsettling the entire selection process, the bench of MR Shah* and BV Nagarathna, JJ exercised its powers under Article 142 of the Constitution of India to do complete justice to all the candidates involved.

Factual Background

BSNL issued notification in 2008 for filling up the post of Telecom Technical Assistants (TTAs). The recruitment was to be made by conducting a competitive examination of eligible candidates in an objective type paper of 200 marks. However, in the exam which was conducted no person from general category candidate got more than 40% marks. However, four candidates from OBC category obtained more than 33% marks.

Despite the poor pass percentage of candidates in the TTA examination, BSNL relaxed the qualifying marks by 10% for all candidates owing to the acute shortage of manpower. Accordingly, the qualifying marks were refixed at 30% for general category and 23% for reserved category.

However, two candidates, who were found to be more meritorious than the general category candidates subsequently were found eligible to be appointed against the reserved category – OBC. Therefore, the respondent No.1, who was wait listed No.1 in OBC category, approached the Tribunal for a direction to prepare a fresh list for all candidates based on relaxed standard and act on the said combined merit list. It was, inter alia, pleaded that there cannot be two cut-off marks for a single selection. It was submitted that there was an unreasonable classification by providing another set of cut-off marks and the action was discriminatory and violative of Articles 14 and 16 of the Constitution of India.

It was the case on behalf of the original applicant that those two candidates belonging to OBC category, who were having more merit were required to be adjusted against the general category seats and consequently the seats reserved for OBC category were required to be filled in from remaining reserved category candidates on merit.

Tribunal’s ruling

Tribunal directed BSNL to consider the candidature of the respondent No.1, if sufficient vacancies exist for placement of the candidates of OBC and further his candidature shall be considered against the present and future vacancies on OBC category.

High Court’s Ruling

Rajasthan High Court dismissed the writ petition preferred by BSNL by observing that the BSNL should have given appointment to the two candidates belonging to OBC category, against the vacancies which were not reserved vertically in the event of shuffling the said two persons to general category (admittedly both the candidates have secured and/or have more merit than the general category candidates, who were appointed). The High Court further observed that consequently the respondent no. 1 could have been selected against the vacancies reserved for the OBC.

Supreme Court’s Ruling

When the matter reached the Supreme Court, various decisions were taken note of wherein it was held that the reserved category candidates securing higher marks than the last of the general category candidates are entitled to get seat/post in unreserved categories. Further, even while applying horizontal reservation, merit must be given precedence and if the candidates, who belong to SCs, STs and OBCs have secured higher marks or are more meritorious, they must be considered against the seats meant for unreserved candidates. It is further observed that the candidates belonging to reserved categories can as well stake claim to seats in unreserved categories if their merit and position in the merit list entitles them to do so.

Applying the law laid down by the Supreme Court in various decisions to the facts of the case on hand, the Court noted that the two candidates, namely, Alok Kumar Yadav and Dinesh Kumar, belonging to OBC category, were required to be adjusted against the general category as admittedly they were more meritorious than the last of the general category candidates appointed and that their appointments could not have been considered against the seats meant for reserved category. Consequently, after considering their appointments in the general category, the seats meant for reserved category were required to be filled in from and amongst the other remaining reserved category candidates on merit such as respondent No.1.

“If such a procedure would have been followed, the original applicant – respondent No.1 would have got appointed on merit in the reserved category seats in the vacancy caused due to the above procedure.”

Therefore, the findings of the High Court were upheld.

The Court, however, was also alive to the fact that by reshuffling and on insertion of two OBC candidates into general category select list, two general category candidates already appointed shall have to be expelled and/or shall have to be removed, who are working since long and it may unsettle the entire selection process. Therefore, to strike a balance and to ensure that the two general category candidates, who are already appointed will not have to be removed and at the same time, respondent No.1 being a reserved category candidate also gets accommodated, if he is so appointed, in exercise of the powers under Article 142 of the Constitution of India, the Court ordered that on reshuffling and on respondent No.1 being appointed now against the reserved category seats and while the Alok Kumar Yadav and Dinesh Kumar, belonging to reserved category, to be treated in the general category seats, two candidates already appointed and belonging to general category shall not be removed. However, respondent No.1 shall get the seniority from the date the general category candidates were appointed, who were having lesser merit than Alok Kumar Yadav and Dinesh Kumar.

[Bharat Sanchar Nigam Ltd. Sandeep Choudhary, 2022 SCC OnLine SC 524, decided on 28.04.2022]


*Judgment by: Justice MR Shah


Counsels

Amicus curiae: Senior Advocate Dr. Rajeev Dhavan and Advocate Gaurav Agrawal

For BSNL: Advocate Pradeep Kumar Mathur

For respondent no.1: Advocate Puneet Jain

Case BriefsSupreme Court

Supreme court: In a long ongoing battle between Life Insurance Corporation of India (LIC) and its temporary/badli/part-time employees over claim for absorption, the 3-judge bench of Dr. DY Chandrachud*, Surya Kant and Vikram Nath, JJ has appointed a two member committee to carry out fresh verification of the claims of workers who were working between 20 May 1985 and 4 March 1991 and who claim to have been employed for at least 70 days in Class IV posts over a period of three years or 85 days in Class III posts over a period of two years shall be carried out.

The Committee will consist of:

  • Justice P K S Baghel, former Judge of the Allahabad High Court; and
  • Rajiv Sharma, former District Judge and member of the UPHJS

In a 90-pages-long verdict that led to the aforementioned conclusion, the Court observed,

“The dispute is now of an antiquity tracing back to nearly four decades. Finality has to be wrung down on the dispute to avoid uncertainty and more litigation. Nearly thirty-one years have elapsed since 1991. We have come to the conclusion that the claims of those workers who are duly found upon verification to meet the threshold conditions of eligibility should be resolved by the award of monetary compensation in lieu of absorption, and in full and final settlement of all claims and demands.”

Background

The genesis of the present dispute relates to a demand raised by the Unions on 4 March 1991, pertaining to the claim for regularisation of those workers who were employed India with LIC as temporary/badli/part-time workers from 20 May 1985 till the date of reference on 4 March 1991.

The Central Government Industrial Tribunal (CGIT) which was presided over by K S Srivastav, directed that the temporary, badli and part-time workers who were employed after 20 May 1985 should be granted absorption on the same terms and conditions as was stipulated in the Tulpule and Jamdar Awards (in respect of workers who were employed from 1 January 1982 to 20 May 1985). LIC was directed to publish a notice in the newspapers for inviting applications from individual workers for absorption. If no regular vacancy was available, the award directed supernumerary posts to be created.

The Delhi High Court, however, set aside the said award.

On 12 December 2018, while dealing with the batch of contempt petitions, a two-judge Bench of the Supreme Court directed the CGIT to “look into the matter with regard to the claims made by the Union(s) individual workmen”. As many as 15,500 claims were submitted on behalf of the Unions, Associations and individual workers claiming absorption and the benefit of the Srivastav Award dated 18 June 2001. The CGIT submitted its report i.e. the Dogra Report on 31 May 2019.

The Dogra Report was primarily challenged by LIC on the ground that, as a consequence of the same, LIC would be required to regularise about 11,780 workers who claim to have worked for a limited number of days. No verification of these claims has been done either by the LIC or by the CGIT in the Dogra Report. This would amount to an illegal backdoor entry, which would be contrary to the statutory regulations framed by the LIC. Further, LIC would also face the issue of a lack of sanctioned posts for these workers.

Supreme Court’s Ruling

Dogra Report is Flawed

Holding the Dogra Report to be flawed, the Supreme Court observed,

“LIC as a statutory corporation is bound by the mandate of Articles 14 and 16 of the Constitution. As a public employer, the recruitment process of the corporation must meet the constitutional standard of a fair and open process. Allowing for back-door entries into service is an anathema to public service”

The Court found the Dogra Report to be flawed as,

(a) It failed to carry out an accurate verification of only those Class III workers who had put in at least 85 days of work in a period of two years and Class IV workers who had put in 70 days of work in a period of three years;

(b) The lists which are appended to the report contain patent inconsistencies and errors as a consequence of a failure to carry out an adequate verification; and

(c) The report accepted the claims for absorption of those workers who were specifically governed by the decision of this Court in E Prabavathy v. LIC[1], in spite of an express stipulation to the contrary in the order of the Supreme Court as well as in paragraph 75 of the Srivastav Award;

It was, hence, held that,

“A public employer such as LIC cannot be directed to carry out a mass absorption of over 11,000 workers on such flawed premises without following a recruitment process which is consistent with the principles of equality of opportunity governed by Articles 14 and 16 of the Constitution. Such an absorption would provide the very back-door entry, which negates the principle of equal opportunity and fairness in public employment.”

Directions

  • A fresh verification of the claims of workers who claim to have been employed for at least 70 days in Class IV posts over a period of three years or 85 days in Class III posts over a period of two years shall be carried out;
  • The verification shall be confined to persons who were working between 20 May 1985 and 4 March 1991;
  • All persons who are found to be eligible on the above norm shall be entitled to compensation computed at the rate of Rs 50,000 for every year of service or part thereof. The payment of compensation at the above rate shall be in lieu of reinstatement, and in full and final settlement of all claims and demands of the workers in lieu of regularisation or absorption;
  • In carrying out the process of verification, the Committee appointed by this Court shall not be confined to the certified list before the CGIT and shall consider the claims of all workers who were engaged between 20 May 1985 and 4 March 1991;
  • For the purpose of verification, LIC shall make available all the records at the Divisional level to the Committee appointed by this Court;
  • It will be open to the workers concerned or, as the case may be, the Unions and Associations representing them, to make available such documentary material in their possession for the purpose of verification;
  • The process of verification shall be carried out independently without regard to the Dogra Report, which is held to be flawed;
  • The payment of compensation in lieu of reinstatement shall be effected by LIC within a period of three months from the date of receipt of the report of verification by the Committee

[Ranbir Singh v. SK Roy, Chairman, Life Insurance Corporation of India, 2022 SCC OnLine SC 521, decided on 27.04.2022]


*Judgment by: Justice Dr. DY Chandrachud


Counsels

For LIC: Senior Advocate ANS Nadkarni

For Unions, Associations and workers: Senior Advocates Dr Manish Singhvi, Pallav Sishodia, R Singaravelan, V Prakash and Salman Khurshid and Advocates Nandakumar, Rakesh Shukla and Shailesh Madiyal


[1] SLP (Civil) No 10393 of 1992

Case BriefsSupreme Court

Supreme Court: In a case where an employee had produced a fake certificate for seeking employment, the bench of MR Shah* and BV Nagarathna, JJ has held that producing the false/fake certificate is a grave misconduct and dismissal of service is a justified punishment in such cases.

The respondent in the present case was originally appointed as a casual employee with the Indian Oil Corporation. He was later regularized as a Helper after presenting a fake Secondary School Leaving Certificate. The disciplinary authority imposed a punishment of dismissal from service on him. However, the Bombay High Court directed reinstatement of the respondent without any back wages and other benefits.

The respondent had submitted before the Court that he pleaded guilty and admitted that he had submitted a forged and fake certificate on the assurance that lesser punishment will be imposed.  However, the Supreme Court found that except the bald statement, there is no further evidence on the same. Nothing has been mentioned on record as to who gave him such an assurance.

The Court observed that,

“The question is one of a TRUST. How can an employee who has produced a fake and forged marksheet/certificate, that too, at the initial stage of appointment be trusted by the employer? Whether such a certificate was material or not and/or had any bearing on the employment or not is immaterial. The question is not of having an intention or mens rea. The question is producing the fake/forged certificate. Therefore, in our view, the Disciplinary Authority was justified in imposing the punishment of dismissal from service.”

The Court also observed that no specific reasoning was given by the High Court on how the punishment imposed by the Disciplinary Authority could be said to be shockingly disproportionate to the misconduct proved.

“As per the settled position of law, unless and until it is found that the punishment imposed by the Disciplinary Authority is shockingly disproportionate and/or there is procedural irregularity in conducting the inquiry, the High Court would not be justified in interfering with the order of punishment   imposed by the Disciplinary Authority which as such is a prerogative of the Disciplinary Authority.”

Holding that the High Court exceeded in its jurisdiction in interfering with the order of punishment imposed by the Disciplinary Authority, the Court observed that in the facts and circumstances of the case and for the reasons stated above and considering the charge and misconduct of producing the fake and false SSLC Certificate proved, when a conscious decision was taken by the Disciplinary Authority to dismiss him from service, the same could not have been interfered with by the High Court in exercise of powers under Article 226 of the Constitution of India.

[Indian Oil Corporation Ltd. v. Rajendra D. Harmalkar, 2022 SCC OnLine SC 486, decided on 21.04.2022]


*Judgment by: Justice MR Shah


Counsels

For appellant: Advocate Rajiv Shukla

For respondent: Advocate Suruchi Suri

Case BriefsSupreme Court

Supreme Court: The Division Bench of Hemant Gupta and V. Ramasubramanian*, JJ., reversed the impugned order of the Allahabad High Court holding that where no particular qualification, particularly Master’s Degree in ‘Karm Kand’ was prescribed for the post of Lecturer in ‘Karm Kand’ either by the University Statute or in the advertisement, candidature of the appellant could not be rejected for not holding a Master’s degree in ‘Karm Kand’.

Opining that the appellant’s rejection was a result of stale relationship of the Chancellor and the Vice-Chancellor, the Bench commented,

“…perhaps the entire selection process undertaken in 2006 by the University, became victims of the crossfire between the Chancellor and the Vice-Chancellor.”

Background

In the instant case, the appellant had approached the Court to assail the impugned order of the Allahabad High Court, which had dismissed his writ petition seeking to quash an order of the Chancellor of the Mahatma Gandhi Kashi Vidyapeeth University, rejecting his request to be appointed as Lecturer (Karm Kand). Admittedly, the appellant was engaged as a Guest Lecturer on remuneration from the year 2006 and ever since, he had been teaching students undergoing a one year diploma course in ‘Karm Kand’ for the past nearly 16 years.

Noticeably, the University had invited applications for appointment to the post of lecturer in “Karm Kand”. The genesis of the dispute was that though the Selection Committee had recommended the appellant’s name for appointment but the Executive Council disagreed on the ground that the Vice-Chancellor failed to request the Chancellor to nominate subject experts in the Selection Committee. Hence, initial objection was that the Selection Committee did not include the subject experts nominated by the Chancellor.

Issue before the High Court

Noting that there were no subject experts in ‘Karm Kand’, as no University was offering a specific course in ‘Karm Kand’, the High Court remanded the matter back to the Chancellor to ascertain whether subject experts were actually available and whether the failure of the Vice Chancellor to seek nomination of such experts from the Chancellor vitiated the whole process. Finding that the answer to the said question was too difficult to be provided, the Chancellor went on a detour to find out what are the differences between the subject of Sanskrit and the subject of ‘Karm Kand’. Consequently, the Chancellor held that the appellant did not hold a Master’s degree in ‘Karm Kand’; hence he did not possess the prescribed qualifications for appointment.

Analysis and Findings

Contrary to the order of the Chancellor, the Bench noted that the advertisement did not specify particularly that a candidate applying for the post of Lecturer in ‘Karm Kand’ should hold a Master’s Degree in ‘Karm Kand’. Similarly, the University Statutes did not prescribe any specific qualifications necessary for appointment to the post of Lecturer in ‘Karm Kand’, hence the Bench opined that in the absence of any specific prescription, the University ought to have referred the question of what constitutes relevant subjects, before the process of selection began. Further, the Bench observed that neither the University nor the Chancellor took a stand in the first instance that the appellant was not qualified in the “relevant subject”.

Considering that no candidate was available with a post graduate degree in ‘Karm Kand’ and the Selection Committee which comprised of a representative of the Department of Sanskrit found the appellant to possess a Master’s degree in the relevant subject. Another development that strengthen the case in favour of the appellant was that the Department of Sanskrit by a subsequent meeting had apprised that the Academic Qualification of the Karm Kand and for the post of Professor of Sanskrit be kept one and the same as well as the Specialized experience of karm kand be stipulated as compulsory which was passed unanimously.

Verdict

In the backdrop of above, the Bench opined that dismissal by the High Court was clearly erroneous. The Bench commented,

“…it is time for the University to put an end to this ‘Yuddh Kand’ and allow the appellant to move from ‘Karm Kand’ to ‘Karm Phal Kand’.”

Consequently, the appeal was allowed and the impugned order was set aside. The University was directed to regularize the services of the appellant.

[Dinesh Chandra Shukla v. State of U.P., 2022 SCC OnLine SC 353, decided on 24-03-2022]


*Judgment by: Justice V. Ramasubramanian


Appearance by:

For the Petitioner: Advocate Sneha Kalita

For the Respondents: Advocates Sandeep Devashish Das, Sanjay Kumar Tyagi and Kamakshi S. Mehlwal


Kamini Sharma, Editorial Assistant has put this report together

Case BriefsSupreme Court

Supreme Court: The bench of Hemant Gupta and V. Ramasubramanian*, JJ has held that an ad hoc payment made to the workers pursuant to the interim orders passed by this Court in a previous round of litigation does not form part of “wages” within the meaning of the expression under Section 2(s) of the Payment of Gratuity Act, 1972, for the purpose of calculating gratuity.

Factual Background

The scales of pay of the employees of public sector undertakings were revised w.e.f. 01.01.1992.

When the benefit of such revision was not made available to the employees of Fertiliser Corporation of India Limited and Hindustan Fertiliser Corporation Limited, their employees moved writ petitions in various High Courts, in the year 1996.

The writ petitions pending on the file of various High Courts were transferred to the Supreme Court.

By an interim order dated 18.08.2000, the Supreme Court directed an ad hoc monthly payment of Rs.1500/¬, Rs.1000/-, Rs.750/¬ and Rs.500/¬, respectively to four different categories of employees, as an interim measure, subject to the final outcome of the writ petitions which stood transferred to this Court.

In the final order, the Supreme Court held that economic viability or the financial capacity of the employer is an important factor which cannot be ignored while fixing the wage structure and that the materials on record clearly revealed that both these companies were suffering heavy losses for several years. It also made it clear that what was paid was only ad hoc.

Once the curtain was finally drawn on their very employment, the Controlling Authority started passing orders in the applications filed by the employees individually, treating the ad hoc payment as part of the wages.

The Management of these companies moved an application before the Supreme Court for clarification/modification of the order. On 01.05.2008, the Supreme Court disposed of the interim application by just observing that when the final order is passed, the interim order automatically comes to an end.

Analysis

Section 2(s) of the Act defines wages, as follows:-

“wages” means all emoluments which are earned by an employee while on duty or on leave in accordance with the terms and conditions of his employments and which are paid or are payable to him in cash and includes dearness allowance but does not include any bonus, commission, house rent allowance, overtime wages and any other allowance.”

The Court explained that the definition of the expression is in 3 parts,

  • the first part indicating the meaning of the expression,
  • the second part indicating what is included therein and
  • the third part indicating what is not included therein.

In the first part of the definition, the emphasis is on what is earned by the employee “in accordance with the terms and conditions of employment”.

Hence, irrespective of whether what was earned has been paid or remained payable, the same is included in the definition, provided it is in accordance with the terms and conditions of his employment.

The Court also took note of the ruling in Straw Board Manufacturing Co. Ltd. v. Workmen, (1977) 2 SCC 329, wherein it was held that:

“We clarify that wages will mean and included basic wages and Dearness Allowance and nothing else”.

The Court also observed that it is a fundamental principle of law that a party who is in enjoyment of an interim order, is bound to lose the benefit of such interim order when the ultimate outcome of the case goes against him.

“Merely because of the fortuitous circumstance of the Voluntary Separation Scheme coming into effect before the transferred cases were finally dismissed by this Court by an order dated 25.04.2003, creating an illusion as though the last drawn pay included this  ad hoc  payment, it is not possible to go against the fundamental rule that the benefits of an interim order would automatically go when the party who secured it, failed in the final stage.”

Keeping in mind the above definition, if we go back to historical facts, it would be clear that the employees initiated the first round of litigation before various High Courts, for the grant of the benefit of revision of pay scales, way back in the year 1996, on the ground that the employees of other PSUs have been granted revision on par with the Government servants. It will thus be clear that what was claimed in the first round of litigation was not what was payable in accordance with the terms and conditions of employment. Therefore, this Court was clear in its interim order dated 18.08.2000 as to how 1the ad hoc payment ordered there under should be treated. Even in the final order, this Court made it clear that what was paid was only ad hoc.

The Court, hence, held that the ad hoc payment made pursuant to the interim orders will not form part of the wages. However, in view of the efflux of time and taking into account the fact that few employees are now no more, the Court directed the Management not to effect any recovery, if payment has already been made to any of the respondents or their families.

[Fertilizer Corporation of India Ltd. v. Rajesh Chandra Srivastava, 2022 SCC OnLine SC 417, decided on 07.04.2022]


*Judgment by: Justice V. Ramasubramanian

Legal RoundUpSupreme Court Roundups

 

“Women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and thus, they are burdened with an unequal share of family responsibilities. Measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace.”

Justice Dr. DY Chandrachud

SK Nausad Rahaman v. Union of India

2022 SCC OnLine SC 297


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EXPLAINED


Which law to prevail if provisions of Bihar Public Works Contracts Disputes Arbitration Tribunal Act, 2008 are in conflict with the Arbitration and Conciliation Act, 1996?

Can step-children claim property right in mother’s mehar after her death? Does a registered mehar deed become unenforceable for being nominal?

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Compensation under Section 4 of Employee’s Compensation Act, 1923 to be awarded from the date of accident or the date of Commissioner’s order? 

Can voluntary retiree seek retrospective promotion as a matter of right? 

Can State discriminate between persons having experience in home State from those having experience in other States? Is there any intelligible differentia?


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‘Lotteries’ a species of ‘betting and gambling’; States Legislatures competent to levy tax

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Interchangeability of unfilled posts of SC/ST category can be done only by the department concerned, not by appointing authority

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Trap party recovers tainted currency notes from Tax Officer accused of demanding bribe. Supreme Court acquitted the officer in spite of proved recovery

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Irregular Disciplinary Enquiry: Court cannot reinstate employee as such; Matter must be remanded to Enquiry Officer/Disciplinary Authority

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How will the higher Court know why review jurisdiction was exercised? Courts must mention what was that error apparent on the face of the record

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Is amount spent by pharmaceutical companies in gifting freebies to the doctors “business expenditure” under IT Act when act of accepting freebies by doctors is an offence? SC answers

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Supreme Court Cases


2022 SCC Vol. 1 Part 2

In this part, read a very pertinent decision of the Supreme Court, Amazon.com NV Investment Holdings LLC v. Future Retail Ltd.2021 SCC OnLine SC 557 wherein while holding that an award passed by Emergency Arbitrator is enforceable under the Arbitration and Conciliation Act, 1996, a Division Bench of R.F. Nariman and B.R. Gavai, JJ. has ruled in favour of Amazon in the infamous Future-Amazon dispute. It has been held that the interim award in favour of Amazon, passed by the Emergency Arbitrator appointed under the Arbitration Rules of the Singapore International Arbitration Centre is enforceable under the Indian Arbitration Act.

2022 SCC Vol. 1 Part 3

In this part read the Supreme Court decision in Jaypee Kensington Boulevard Apartments Welfare Association v. NBCC (India) Ltd.,(2022) 1 SCC 401, wherein the Court while the Adjudicating authority has the authority to disapprove the resolution plan approved by the Committee of Creditors (CoC), it cannot modify the same.

2022 SCC Vol. 2 Part 1

In this part read a very important matter, wherein a relative committed rape on the prosecutrix and none of the family members believed her and in fact beat her up when she narrated the incident, Supreme Court found it unfortunate that even the sister-in-law (Jethani) and mother-in-law though being women did not support the prosecutrix. [Phool Singh v. State of Madhya Pradesh, 2021 SCC OnLine SC 1153]

2022 SCC Vol. 2 Part 2


Case BriefsSupreme Court

Supreme Court: In the case where the Gujarat High Court had ordered the absorption of persons employed in a temporary unit, by creating supernumerary posts, the bench of MR Shah* and BV Nagarathna, JJ has held that no such direction can be issued by the High Court for absorption/regularisation of the employees who were appointed in a temporary unit which was created for a particular project and that too, by creating supernumerary posts.

In the present case, the respondents were initially appointed for a period of eleven months and on a fixed salary and that too, in a temporary unit – ”Project Implementation Unit”, which was created only for the purpose of rehabilitation pursuant to the earthquake for “Post-Earthquake Redevelopment Programme”. Therefore, the unit in which the respondents were appointed was itself a temporary unit and not a regular establishment. The posts on which the respondents were appointed and working were not the sanctioned posts in any regular establishment of the Government.

The Court, hence, observed that when the respondents were appointed on a fixed term and on a fixed salary in a temporary unit which was created for a particular project, no such direction could have been issued by the Division Bench of the High Court to absorb them in Government service and to regularise their services, by creating supernumerary posts. It was held that such a direction is wholly without jurisdiction.

What has weighed with the High Court was that the respondents were continued in service for a long time, i.e., seventeen years. However, out of seventeen years, the respondents continued in service for ten years pursuant to the interim order passed by the High Court. In such circumstances as well, the Court noticed that the High Court totally missed out on the aspect that the period for which the employees have continued in service pursuant to the interim order is to be excluded and not to be counted.

Not only this but though not required, the State, instead of putting an end to the services of the respondents, graciously placed the respondents in the Indian Red Cross Society, which the respondents did not accept.

“No duty was cast upon the State to transfer them to another establishment in a case where it is found that the employees are appointed in a temporary unit and on a temporary contractual basis and on a fixed term salary and on closure of the temporary unit, their services are not required.”

Considering all the aforementioned aspects, the Court set aside the decision of the High Court.

[State of Gujarat v. RJ Pathan, CIVIL APPEAL NO. 1951 OF 2022, decided on 24.03.2022]


*Judgment by: Justice MR Shah


Counsels

For State: Advocate Deepanwita Priyanka

For Respondents: Advocate Kabir Hathi

Case BriefsSupreme Court

Supreme Court: In a disciplinary proceeding where it was established that there was a breach of principles of natural justice as the relevant documents mentioned in the charge sheet were not supplied to the delinquent officer, the bench of MR Shah* and BV Nagarathna, JJ has reiterated the settled legal position that in a case where it is found that the enquiry is not conducted properly and/or the same is in violation of the principles of natural justice, the Court cannot reinstate the employee as such and the matter is to be remanded to the Enquiry Officer/Disciplinary Authority to proceed further with the enquiry from the stage of violation of principles of natural justice is noticed.

Factual Background

The Court was deciding the case where the respondent employee serving as a Junior Engineer at Balia found to have committed financial irregularities causing loss of Rs. 22,48,964.42/- to the Government. The Disciplinary Authority, concurring with the findings recorded by the Enquiry Officer, passed an order of recovery of Government loss from the salary; temporarily stopping two salary increments and the remarks given for the year 2017-2018.

The U.P. State Public Service Tribunal quashed the punishment mainly on the ground of Doctrine of Equality and also on the ground that the enquiry conducted was in breach of principles of natural justice in as much as the relevant documents mentioned in the charge sheet were not supplied to the delinquent officer. Allahabad High Court refused to interfere with the Tribunal’s order.

Analysis

Doctrine of Equality

The Supreme Court did not agree with the Tribunal and High Court’s view on quashing and setting aside the order of punishment imposed by the Disciplinary Authority applying the Doctrine of Equality on the ground that other officers involved in the incident have been exonerated and/or no action has been taken against them. The Court explained,

“The Doctrine of Equality ought not to have been applied when the Enquiry Officer and the Disciplinary Authority held the charges proved against the delinquent officer. The role of the each individual officer even with respect to the same misconduct is required to be considered in light of their duties of office. Even otherwise, merely because some other officers involved in the incident are exonerated and/or no action is taken against other officers cannot be a ground to set aside the order of punishment when the charges against the individual concerned – delinquent officer are held to be proved in a departmental enquiry. There cannot be any claim of negative equality in such cases.”

Therefore, it was held that both the Tribunal as well as the High Court have committed a grave error in quashing and setting aside the order of punishment imposed by the Disciplinary Authority by applying the Doctrine of Equality.

Violation of principle of natural justice

As the enquiry is found to be vitiated and is found to be in violation of the principles of natural justice as the relevant documents mentioned in the charge sheet were not supplied to the delinquent officer, the Court remanded the matter to the Disciplinary Authority to conduct a fresh enquiry from the stage it stood vitiated, i.e., after the issuance of the charge sheet and to proceed further with the enquiry after furnishing all the necessary documents mentioned in the charge sheet and after following due principles of natural justice. The Court directed this exercise to be completed within a period of six months from the date of the present order.

[State of Uttar Pradesh v. Rajit Singh,  2022 SCC OnLine SC 341, decided on 22.03.2022]


*Judgment by: Justice MR Shah


Counsels

For State: Senior Advocate V.K. Shukla

For respondent: Advocate Utkarsh Srivastava

Case BriefsSupreme Court

Supreme Court: The bench of Indidra Banerjee and JK Maheshwari*, JJ the interchangeability of the vacant unfilled posts of SC category may be possible due to not having eligible candidates by the department concerned but not by appointing authority.

Factual Background

The Court was deciding the case where the appellants have applied for the post of (Elementary Trained Teachers) ETT in9 the category of  Backward Class. Pursuant to the advertisement, selection process was carried out and appointment letters were issued to the selected candidates. All the notified posts of Backward Classes have been filled up merit wise after the direction of the High Court. In the said process of selection, 595 posts of SC/ST   category remained unfilled on account of “non availability” of eligible candidates in the said category. The appellants claimed appointment against those vacant posts of SC/ST category on the anvil of policy instructions regarding “Reservations of vacancies in State Government Services of members of Backward Classes”, issued by State of Punjab. The aforesaid Policy letter provide for “de-reservation/interchangeability” of the post from SC/ST category to OBC category or vis-à-vis in a contingency of non-availability of eligible candidates belongs to SC/ST or OBC, as the case may be. The appellants submitted various representations to the concerned authorities on the basis of the said Policy letter for interchangeability of the posts of SC/ST into OBC category, which as per appellants was not considered in a right perspective. Now by order impugned as per the statement made by the State Government those posts are being readvertised, without redressing their grievance. It is the grievance of the appellants that the unfilled posts of SC/ST category may be filled from the eligible candidates of Backward Class category, directing interchangeability of the said vacant posts.

Analysis

The Court explained that de-reservation of any reserved vacancy which is to be filled up by direct recruitment or by promotion cannot be done by the appointing authority. In case due to non-availability of the eligible candidates of any of the category, the posts remain unfilled, the appointing authority may request to the Department of Welfare of Scheduled Castes and Backward Classes for de-reservation of the said unfilled vacancy. On such request after recording satisfaction, if necessary or expedient in the public interest, subject to the condition to carry forward the said vacancy against subsequent unreserved vacancy the order may be passed by the said department.

Thus, in the context of Punjab Schedule Castes and Backward Classes Reservation in Service) Act, 2006 also it was observed that the de-reservation or interchangeability may be possible with a rigour to exercise such power by the department, namely; Department of Scheduled Castes and Backward Classes and not by appointing authority.

Examining the impugned Policy letter, the Court observed that those instructions are not in contravention of the provisions of Section 7 of the 2006 Act; in fact, it is as per the spirit of the 2006 Act.

The Court also took note of the fact that the merit list was prepared in furtherance to the advertisement of the year 2015-2016 and to accommodate the candidates of the said merit list. Thereafter interchangeability for unfilled 595 vacancies of SC/ST category has been prayed for. Hence, issuance of such direction after 6 years of notifying the selection list for filling up the unfilled vacancies of SC/ST category by OBC would be wholly unjustified. In addition, the selection list prepared in the year 2016 would not survive after the lapse of a long time to fill up the vacancies after interchangeability.

Also, rejection of claims of appellants by the departmental authorities relying upon wrong instructions or mentioning incorrect fact of withdrawal of Policy letter would not confer any right to appellants to claim the reliefs.

“Such an act of the departmental authorities may be deprecated but it would not confer any right to the appellants to seek direction of interchangeability of the unfilled 595 posts of ETT of SC/ST category to OBC category.”

[Mandeep Kumar v. UT Chandigarh, CIVIL APPEAL NO. 1908 OF 2022, decided on 06.03.2022]


*Judgment by: Justice JK Maheshwari


For appellants: Senior Advocate P.S. Patwalia

For Respondents: Advocate Karan Bharihoke

Case BriefsSupreme Court

Supreme Court: Speaking about the systemic discrimination on account of gender at the workplace which encapsulates the patriarchal construction that permeates all aspects of a woman’s being from the outset, including reproduction, sexuality and private choices, within an unjust structure, the bench of Dr. DY Chandrachud* and Vikram Nath, JJ has observed that it becomes necessary for the Government to adopt policies through which it produces substantive equality of opportunity as distinct from a formal equality for women in the workplace.

“Women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and thus, they are burdened with an unequal share of family responsibilities. Measures to ensure substantive equality for women factor in not only those disadvantages which operate to restrict access to the workplace but equally those which continue to operate once a woman has gained access to the workplace. The impact of gender in producing unequal outcomes continues to operate beyond the point of access. The true aim of achieving substantive equality must be fulfilled by the State in recognizing the persistent patterns of discrimination against women once they are in the workplace.”

The Court further observed that the manner in which a special provision should be adopted by the State is a policy choice which has to be exercised after balancing out constitutional values and the needs of the administration. But there can be no manner of doubt that the State, both in its role as a model employer as well as an institution which is subject to constitutional norms, must bear in mind the fundamental right to substantive equality when it crafts the policy even for its own employees.

“The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy. How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21.”

The observations came in the judgment where the Court has upheld the Kerala High Court verdict that had held that the Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner) Group ‘B’ Posts Recruitment Rules 2016 (RR 2016) withdrawing the Inter-Commissionerate Transfers (ICTs) is not invalid as ICTs would violate the unique identity of each cadre envisaged under Rule 5 of RR 2016.

The Court, however, left it open to the Union of India to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds.

Read more: Withdrawal of  Inter-Commissionerate Transfers not invalid but Recruitment Rules 2016 may be revisited to accommodate posting of spouses, disabled persons and compassionate grounds

[SK Nausad Rahaman v. Union of India, 2022 SCC OnLine SC 297, decided on 10.03.2022]


*Judgment by: Justice Dr. DY Chandrachud


Counsels

For appellants and Intervenors: Senior Advocates Maninder Singh, Vibha Datta Makhija, PN Ravindran, Narender Hooda and Rana Mukherjee, and advocates Rishi Kapoor and Umakant Misra

For respondents: KM Nataraj, Additional Solicitor General

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud* and Vikram Nath, JJ has upheld the Kerala High Court verdict that had held that the Central Excise and Customs Commissionerates Inspector (Central Excise, Preventive Officer and Examiner) Group ‘B’ Posts Recruitment Rules 2016 (RR 2016) withdrawing the Inter-Commissionerate Transfers (ICTs) is not invalid as ICTs would violate the unique identity of each cadre envisaged under Rule 5 of RR 2016.

The Court, however, left it open to the Union of India to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds.

RR 2016 vis-à-vis CBIC Circular dated 20.09.2018

While clarifying that under RR 2016, there is no specific provision allowing for ICTs, the circular notes that Rule 5 stipulates that each CCA will have its own separate cadre, unless otherwise directed by the Board. Rule 5 has been construed to mean that given that each CCA is to have its own cadre, ICTs, which involve a transfer from one Commissionerate to another would no longer be permissible and accordingly all orders for such transfers which were issued on or after 26 December 2016 (the date on which RR 2016 were notified) would be non-est. The circular, however, allows that in exceptional circumstances, depending upon the merits of each case and on extreme compassionate grounds, such transfers may be allowed on ‘case to case on loan basis’ keeping in view the administrative requirements of the transferee and the transferred CCAs. However, the maximum tenure of such transfer has been fixed as three years which can be extended by a further period of two years.

Three Grounds on which the Circular was challenged

Ban on ICTs with respect to different classes of posts within the same service is discriminatory between Group A, B and C employees

The Court refused to accept this ground as there is no material on record to indicate that all three groups are pari materia with each other. It may be the case that the instances of abuse of ICTs is higher with respect to employees in Group B, as opposed to the other groups. Such decisions are taken keeping in mind the strength of the service and the needs of the administration

Gender Equality

The provision which has been made for spousal posting is in that sense fundamentally grounded on the need to adopt special provisions for women which are recognized by Article 15(3) of the Constitution. The manner in which a special provision should be adopted by the State is a policy choice which has to be exercised after balancing out constitutional values and the needs of the administration. But there can be no manner of doubt that the State, both in its role as a model employer as well as an institution which is subject to constitutional norms, must bear in mind the fundamental right to substantive equality when it crafts the policy even for its own employees.

“The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy. How a particular policy should be modulated to take into account the necessities of maintaining family life may be left at the threshold to be determined by the State. In crafting its policy however the State cannot be heard to say that it will be oblivious to basic constitutional values, including the preservation of family life which is an incident of Article 21.”

Equal treatment of disabled persons

The Rights of Persons with Disabilities Act 2016 is a statutory mandate for recognizing the principle of reasonable accommodation for the disabled members of society. The formulation of a policy therefore, must take into account the mandate which Parliament imposes as an intrinsic element of the right of the disabled to live with dignity.

The circular dated 20 September 2018 has taken into account, what it describes “exceptional circumstances” such as “extreme compassionate grounds”. Leaving these categories undefined, the circular allows for individual cases to be determined on their merits on a case-by-case basis, while prescribing that transfers on a “loan basis” may be allowed subject to administrative requirements with a tenure of three years, extendable by a further period of two years.

While proscribing ICTs which envisage absorption into a cadre of a person from a distinct cadre, the circular permits a transfer for a stipulated period on a loan basis. Whether such a provision should be suitably enhanced to specifically include cases involving (i) postings of spouses; (ii) disabled persons; or (iii) compassionate transfers, is a matter which should be considered at a policy level by the Board.

[SK Nausad Rahaman v. Union of India, 2022 SCC OnLine SC 297, decided on 10.03.2022]


*Judgment by: Justice Dr. DY Chandrachud


Counsels

For appellants and Intervenors: Senior Advocates Maninder Singh, Vibha Datta Makhija, PN Ravindran, Narender Hooda and Rana Mukherjee, and advocates Rishi Kapoor and Umakant Misra

For respondents: KM Nataraj, Additional Solicitor General

Case BriefsSupreme Court

Supreme Court: Opining that the advancement of medical field over a period of time has been enormous, the Division Bench comprising of Sanjay Kishan Kaul and M.M. Sundresh, JJ., directed the Railways to constitute a committee to revisit its decision disqualifying persons with history of lasik surgery for the post of constables (RPF).

The appellants had appeared in a competitive examination of the Railways and had sought recruitment as constables in the Railway Protection Force (RPF), however, in view of a policy decision taken by the respondents, dated 11-11-2013 qua medical suitability, the appellants were held unfit for service in categories A and B of the Railway Medical Manual, 2000 for having gone through lasik surgery to the eye. The appellants contended that the decision had been brought into force almost 3 years after the date of advertisement; hence it could not be applied to the recruitment process of the appellants. The contention of the appellants had been rejected by the High Court on the reasoning that once the technical committee goes into an aspect, it may not be proper for the court to step into that domain.

Considering the report of the respondents on the requirement of prohibiting the candidates who have gone through lasik surgery, the Bench observed that the order was passed on 17-08-2011 constituting a committee of Ophthalmologists, all from the Railways, to make an in-depth study and formulate guidelines for medical fitness/unfitness qua candidates and employees of various medical categories who have undergone lasik surgery in the past or during the service period. The Bench noted that that at the time of publication of the report, the lasik procedure had been available in India only for a period of 10 years. Pointing the limitation of the report the Bench expressed,

“We may note that now we have the benefit of an extra decade of medical study and observation with respect to the effects of this procedure. In view of the same, it may be time to revisit the issue.”

Emphasizing on the principle of ‘reasonable accommodation’ which underlines the Rights of Persons with Disabilities Act, 2016 with an objective of recognizing the worth of every person as an equal member of the society, the Bench referred to Pranay Kumar Podder v. State of Tripura, (2017) 13 SCC 351, where a candidate suffering from partial colour blindness was declared ineligible to take admission to the MBBS course and by the intervention of the Court a committee of experts was constituted to review the situation which, ultimately opined in favour of the candidate.

Opining that employment is a very important aspect in the Country which deserves a broader conspectus, the Bench directed to constitute a fresh medical committee of three or more members, out of which not more than one Doctor should be from the Railways and an independent Ophthalmologist from a Government hospital and private field should also be included.

The Bench directed that the committee be constituted within a period of two weeks’ to revisit the aspects about the fitness of candidates who have undergone lasik surgery qua different aspects of Railway employment. Further, the committee was directed to opine on the issue and carry out the exercise on or before 30-04-2022. The Bench remarked,

“This is a larger issue. Appellants here are concerned only with a particular aspect of railway employment which does not require fine technical work or the operation of heavy machinery. A parallel with the position in the armed forces may also not be appropriate as constables in the RPF are not deployed at the frontlines.”

The matter was directed to be listed for directions pursuant to the report on 10-05-2022.

[Dalbir v. Union of India, Special Leave to Appeal (C) No(s). 28003-28004 of 2017, decided on 04-02-2022]


Appearance by:

For Appellants: Advocate Raj Kumar, AOR Karunakar Mahalik, Advocate Abhishek Sonkar, Advocate Sangeeta Chauhan, Advocate Sashi Gupta

For Respondent(s): ASG Madhvi Divan, Advocate Vanshaja Shukla, Advocate Piyush Beriwal, Advocate Vaishali Verma, Advocate Preeti Rani, AOR Amrish Kumar, Advocate Brajesh Pandey, AOR Sunil Prakash Sharma


Kamini Sharma, Editorial Assistant has put this report together

Case BriefsSupreme Court

Supreme Court: Holding that the condition imposed by the Railway Board circular that compassionate appointment cannot be granted to children born from the second wife of a deceased employee is discriminatory, the 3-judge bench of UU Lalit, S. Ravindra Bhat and PS Narsimha*, JJ has held that an applicant cannot be denied consideration under the scheme of compassionate appointments only because he is the son of the second wife of his father.

The Court applied the law laid down by the Court in Union of India v. V.R. Tripathi, (2019) 14 SCC 646, wherein it was held that such a denial is discriminatory, being only on the ground of descent under Article 16(2) of the Constitution.

The Court, in the said judgment, had held that the scheme and the rules of compassionate appointment cannot violate the mandate of Article 14 of the Constitution. Once Section 16 of the Hindu Marriage Act regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, it would violate Article 14 if the policy or rule excludes such a child from seeking the benefit of compassionate appointment. The circular creates two categories between one class, and it has no nexus to the objects sought to be achieved. Once the law has deemed them legitimate, it would be impermissible to exclude them from being considered under the policy.

“Exclusion of one class of legitimate children would fail to meet the test of nexus with the object, and it would defeat the purpose of ensuring the dignity of the family of the deceased employee.”

Relying on a number of Supreme Court rulings, the Court observed that compassionate appointment is an exception to the constitutional guarantee under Article 16, a policy for compassionate appointment must be consistent with the mandate of Articles 14 and 16. That is to say, a policy for compassionate appointment, which has the force of law, must not discriminate on any of the grounds mentioned in Article 16(2), including that of descent. Hence, in this regard, ‘descent’ must be understood to encompass the familial origins of a person.

“Familial origins include the validity of the marriage of the parents of a claimant of compassionate appointment and the claimant’s legitimacy as their child. The policy cannot discriminate against a person only on the ground of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant.”

[Mukesh Kumar v. Union of India, 2022 SCC OnLine SC 229, decided on 24.02.2022]


*Judgment by: Justice PS Narsimha


Counsels

For Appellant: Advocate Manish Kumar Saran

For Respondent: Advocate Meera Patel

Case BriefsSupreme Court

Supreme Court: In a case where a former employee of Rajasthan State Road Transport Corporation sought benefit of Selection Grade, 7 years after his compulsory retirement, the bench of Dr. DY Chandrachud and Surya Kant, JJ has held that the grant of the Selection Grade is not a matter of right and is subject to the stipulated terms and conditions which, in the present case, included a clean and untainted service record. Considering that the respondent was served with as many as 19 charge-sheets in pursuance of which he was subject to departmental penalties, it could not be said that his record was clean.

On 4 January 2003, the respondent, who was appointed on the post of Conductor, was compulsorily retired from service. He then instituted a suit in 2010, nearly seven years after his compulsory retirement seeking the benefit of Selection Grade on the completion of 9, 18 and 27 years of service. The Trial Court and the Rajasthan High Court, both, were of the opinion that the respondent shall be entitled to the grant of Selection Grade from 25 January 1992 on the completion of 9 years of service and the second Selection Grade pay scale from 7 January 2002 on the completion of 18 years of service.

It was, however, argued before the Supreme Court, that firstly, the suit which was instituted in 2010, nearly 7 years after the respondent had retired was barred by limitation and secondly, in order to avail of the benefit of the Selection Grade, the employee was required to have a clean record of service. In the present case, the respondent was served with as many as 19 charge-sheets and penalties.

The respondent, on the other hand, argued that some of the penalties which were imposed on the respondent were without cumulative effect. Hence, the consequence of the withholding of increments without cumulative effect is that after the period prescribed, the respondent would be entitled to restoration of the original pay scale or the original pay.

The Court, however, disagreed with the respondent’s stand and observed that this would not obviate the position that the imposition of the penalty itself indicates that the service record of the employee was not satisfactory.

It was evident in the present case that the respondent had been subjected to several disciplinary proceedings and as many as 19 charge-sheets were issued against him which resulted in penalties of a varying nature. Hence, the service record of the respondent cannot be regarded as untainted or clean.

On the argument that the penalties were of a minor nature, the Court observed,

“Assuming that to be so, it is evident that for the grant of Selection Grade, the respondent did not fulfil the requirements of a clean record of service. The grant of the Selection Grade is not a matter of right and was subject to the terms and conditions which were stipulated. The respondent failed to fulfill these terms and conditions.”

The Court, hence, set aside the impugned judgment of the High Court.

[Rajasthan State Road Transport Corporation v. Sadhu Singh, 2022 SCC OnLine SC 181, order dated 04.02.2022]


Counsels

For appellant: Dr Charu Mathur, AOR

For Respondent: Advocate Nidhi

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

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

Background

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

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

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

Observation and Analysis

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

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

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

Findings and Conclusion

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

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


Kamini Sharma, Editorial Assistant has reported this biref.


Appearance by:

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

For State: Jimmy George, Government Pleader

Case BriefsSupreme Court

Supreme Court: Addressing a case of dismissal of a Bank clerk for breaching the trust of a widowed sister-in-law as well as of the bank, the Division Bench of Sanjay Kishan Kaul* and M.M. Sundresh, JJ., held that it was hardly a case for interference either on law or on moral grounds. The Court opined,

“The High Court had applied the test of criminal proceedings to departmental proceedings while traversing the path of requirement of a hand writing expert to be called for the said purpose.”

Backdrop

The dispute in the instant case was with regard to departmental proceedings made by the Indian Overseas Bank against the respondent employee and declaring him guilty on various counts inter alia including breach of duty as a custodian of public money and dishonesty, fraud or manipulation of documents.

The respondent was employed with the appellant-Bank as a clerk cum-cashier. It was on a complaint from the sister-in-law of the respondent, Smt. Meera Srivastava, complainant herein, that the respondent had opened and operated a savings account in the joint name of the respondent and his sister-in-law by forging her signatures, and encashed a demand draft of Rs. 20,000 which was issued to her by Kalyan Nigam Ltd., employer of her deceased husband, who passed away in a road accident, that the departmental proceedings were initiated against the respondent and he was placed under suspension and later on, on charges being proved against him he was dismissed from service.

Award by the Industrial Tribunal

The Industrial Tribunal decided the preliminary issue against the Bank as the Management/Bank had failed to produce original documents and most photocopies of the relevant pages were not readable. It was, thus, concluded that there was violation of the principles of natural justice. However, the Tribunal allowed the Bank to prove the charges against the respondent by adducing evidence. Consequently, the Tribunal opined that the Bank/Management had been successful in establishing all the charges against the respondent. On the issue of quantum of punishment also it was held that the same was commensurate to the charges levelled and proved against the respondent.

Findings of the High Court

However, by the impugned judgment the High Court had held that when the earlier departmental proceedings were found to be violative of the principles of natural justice then no findings vis-a-vis charges 1, 2, 3, 6 & 7 should have been arrived at, based on the plea that the Bank led evidence only in respect of charges 4 & 5. In respect of charges 4 & 5 it was opined that on the request of the respondent the signatures of the complainant should have been got compared with her admitted signatures by an expert and then only a correct conclusion could have been arrived at whether the signatures on the account opening form or the withdrawal form had been forged by the respondent or not and the Tribunal should have refrained from acting like an expert. The High Court held that degree of investigation should have been a standard which is resorted to by a criminal court.

Factual Analysis

Noticeably, while observing the admitted signatures in comparison with the signatures in question from a banker’s eye, the inquiry officer had opined that it could be said that there was absence of similarity. The stand of the complainant was that even the account was opened fraudulently without her ever visiting the bank. Considering that in her cross-examination it was never put to the complainant that she had gone to the Bank to open the account and the account opening form bears her signatures nor was it put to her that she had gone to the Bank to withdraw the amounts of Rs.7,000 and Rs.13,000, the Bench opined,

“We are of the view that the High Court has fallen into an error in coming to the conclusion in the impugned judgment and directing, once again, the matter to be remitted to the Industrial Tribunal to now seek opinion of a hand writing expert.”

The Bench emphasised that at the threshold that there are certain inherent legal limitations to the scrutiny of an award of a Tribunal by the High Court while exercising jurisdiction under Article 226 of the Constitution. Referring to GE Power India Ltd. v. A. Aziz, 2020 SCC Online SC 782, the Bench stated, “if there is no jurisdictional error or violation of natural justice or error of law apparent on the face of the record, there is no occasion for the High Court to get into the merits of the controversy as an appellate court.” That too, on the aspect of an opinion formed in respect of two sets of signatures where the inquiry was held by an officer of the bank who came to an opinion on a bare comparison of the signatures that there was a difference in the same.

Further, the Inquiry Officer had opined while observing the admitted signatures in comparison with the signatures in question, it was not just the ipse dixit of the Inquiry Officer but was based on the deposition of the complainant. She unfortunately lost her husband in an accident. Observing the sorry state of situation, the Bench remarked,

“She unfortunately lost her husband in an accident. The two drafts were received from his employer and those drafts were kept in custody with the respondent, possibly because he was a banker and the elder brother of her deceased husband. Instead of extending the benefits of the same to her, the respondent went on a path of opening an account jointly in his and his sister-in-law’s name, presenting the drafts, and drawing the amounts with appropriation of the same to himself.”

Findings and Conclusion

Referring to a recent judgment in Ashoo Surendranath Tewari v. CBI, (2020) 9 SCC 636, where it had been observed that the standard of proof in departmental proceedings, being based on preponderance of probability, is somewhat lower than the standard of proof in criminal proceedings where the case has to be proved beyond reasonable doubt, the Bench opined that the evidence was enough to implicate the respondent and  the High Court had applied the test of criminal proceedings to departmental proceedings while traversing the path of requirement of a hand writing expert to be called for the said purpose.

With regard to opinion of the High Court that only charges 4 & 5 could really have been gone into by the Industrial Tribunal, which required further evidence of a hand writing expert and that no evidence was led for other charges, the Bench held that view was neither the correct approach nor borne out of the record as, the Bench said,

“Evidence was led. Even earlier, the material in respect of other charges emanates from the record of the bank which shows the conduct of the respondent which are apparent from the manner of framing of the charges themselves and the material led in support thereof. Thus, even the aspect of the other charges could not have been brushed aside in the manner it purports to. “

In the light of above the Bench held that the respondent, a clerk-cum-cashier which was a post of confidence had breached that confidence along with the trust of a widowed sister-in-law, making it hardly a case for interference either on law or on moral grounds. Accordingly, the punishment imposed on the respondent was held to be appropriate as the conduct established of him did not entitle him to continue in service. The impugned judgment was set aside and the challenge to the award of the Industrial Tribunal was repelled.

[Indian Overseas Bank v. Om Prakash Lal Srivastava, 2022 SCC OnLine SC 62, decided on 19-01-2022]


*Judgment by: Justice Sanjay Kishan Kaul


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