Service Law

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal (AFT): The Division Bench of Justice Umesh Chandra Srivastava and Vice Admiral Abhay Raghunath Karve, Member (A) granted disability pension to the person invalidated from service due to Hypertension.

The applicant was enrolled in the Army Service Corps on 24-12-1993 and was discharged in Low Medical Category due to PRIMARY HYPERTENSION @30% for life. Since the Release Medical Board (RMB) had opined the disability to be neither attributable to nor aggravated by service, the applicant’s claim for disability pension was rejected by the respondent.

The applicant contended that he was found mentally and physically fit for service in the Army at the time of enrolment and there was no note in the service documents that he was suffering from any disease at the time of enrolment, therefore, the disease of the applicant was contacted during the service, hence it was attributable to and aggravated by Military Service which made him entitled to disability pension and its rounding off to 50%.

The law on attributability of a disability had been settled by the Supreme Court in the case of Dharamvir Singh v.Union of India, (2013) 7 SCC 316, wherein it had been observed that,

“29.5. If no note of any disability or disease was made at the time of individual’s acceptance for military service, a disease which has led to an individual’s discharge or death will be deemed to have arisen in service [Rule 14(b)].

29.6. If medical opinion holds that the disease could not have been detected on medical examination prior to the acceptance for service and that disease will not be deemed to have arisen during service, the Medical Board is required to state the reasons [Rule 14(b)]; and 29.7. It is mandatory for the Medical Board to follow the guidelines laid down in Chapter II of the Guide to Medical Officers (Military Pensions), 2002 – “Entitlement: General Principles”, including Paras 7, 8 and 9 as referred to above.”

Rejecting the opinion of RMB that the disease was neither attributable to and aggravated by Military Service because the applicant was posted in Peace location, the Bench opined that denying disability pension to applicant was not convincing and did not reflect complete truth on the matter. The Bench held that peace Stations have their own pressure of rigorous military training and associated stress and strain of military service, since the applicant’s disability had started after more than 22 years of Army service the Bench was of the view that benefit of doubt in should be given to the applicant and the disability of the applicant should be considered as aggravated by military service.

Regarding rounding off of disability pension, the Bench relied on the decision of the Supreme Court in Union of India v. Ram Avtar, 2014 SCC OnLine SC 1761, and held that the impugned order rejecting applicant’s claim for grant of disability element was set aside and the disability of the applicant was held as aggravated by Army Service.

The respondents were directed to grant disability element to the applicant, which was directed to be rounded off to 50% for life from the next date of his discharge. [Naba Kumar Chandra v. Union of India, O.A. No. 237 of 2021, decided on 04-10-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Applicant: Advocate Pankaj Kumar Shukla

For the Respondent: Advocate Shaym Singh

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Administrative Tribunal: The Division Bench of Justice R.N. Singh and A. K. Bishnoi, Member (A), settled a case of family pension and retirement dues in favour of widow of the deceased ASI who had committed suicide while in judicial custody. The Bench held,

“When subjective satisfaction of dispensing with the inquiry is not supported by any independent material, dispensing with holding the inquiry would be illegal and if a preliminary inquiry could be conducted, there may not be any reason as to why formal departmental inquiry could not have been initiated against the delinquent.”

The applicant – widow of deceased Satbir Singh, ASI (Exe.) in Delhi Police, had challenged the impugned order whereby the deceased was dismissed from service by the respondents without conducting the regular departmental inquiry.

The deceased was implicated in case under Sections 302 of Penal Code, 1860 read with Sections 25/54/59 of Arms Act, pursuant to which he was placed under suspension w.e.f. 21-01-2019. A preliminary inquiry was conducted by the respondents and taking into account the allegations levelled against the deceased the respondents had dismissed him from service by dispensing with the departmental inquiry by invoking the provisions of Article 311 (2) (b) of the Constitution. Consequently, the deceased committed suicide while in judicial custody.

The applicant contended that though the respondents had heavily relied upon the report of the preliminary inquiry as well as the allegations levelled against the her husband, no copy of the said report was ever served to the deceased and so her husband was deprived of an opportunity to refute the said report, findings in the said preliminary inquiry report and/or the allegations levelled against him in the said FIR, therefore, the impugned order was illegal, bad in the eyes of law and not sustainable.

The Bench noticed that the deceased had 37 years of unblemished service under the respondents and was to retire on attaining the age of superannuation on 31-05-2021. Moreover, keeping in view the facts noted hereinabove, he committed suicide while in judicial custody on 08-06-2019 and whatever the applicant would have got as retirement/terminal benefits had also been taken away in view of the orders passed by the respondents.

Hence, the application was allowed and the impugned orders were set aside. The respondents were directed to grant and release death-cum-retirement dues, viz., family pension, DCRG, leave encashment etc. with all consequential benefits family pension, arrears of family pension and interest on family pension, gratuity, etc. [Santra Devi v. GNCT of Delhi, O.A. No.3170 of 2019, decided on 07-10-2021]

Kamini Sharma, Editorial Assistant has put this report together 

Appearance by:

For the Applicant: Advocate Sourabh Ahuja

For the GNCT of Delhi: Advocate Sameer Sharma

Case BriefsHigh Courts

Jharkhand High Court: S. N. Pathak, J., directed the State of Jharkhand to provide maternity benefits to a contractual employee whose demand for honorarium for the duration of maternity leave was not addressed by the authorities concerned. The Bench stated,

“A woman employee cannot be discriminated on the basis of mode of appointment and each and every woman, who is an employee of any establishment, is entitled to get the maternity benefit, whatever be the mode of her appointment…”

The petitioner was appointed on a contractual basis to the post of Protection Officer Institutional Care (POIC), Bokaro and till date she was working. The petitioner contended that she had applied for maternity leave before the District Social Welfare Officer from 03-10-2019 to 30-03-2020 and the same was duly received in the office of the Deputy Commissioner, as well as District Social Welfare Officer.

The grievance of the petitioner was that she was continuously working and getting honorarium for the current month, but she had not been paid the honorarium for the period of her maternity leave, though, she had made representation before the respondents, but no heed was paid. The petitioner submitted that there could not be any distinction between a regular employee, contractual employee and casual employee so far as grant of maternity benefit is concerned as the maternity leave was duly sanctioned to the petitioner and prior information was given to the authorities before leaving the station.

Section 2 of the Maternity Benefit Act, 1961 deals with the applicability of such case(s) and it applies to all establishments belonging to the Government and to every establishment wherein person(s) are employed. Further, Section 3(O) of the Act defines a “woman”; which means a woman employed whether directly or through any agency, for wages in any establishment. Section 5 of the Act provides for right to payment of maternity benefits, which includes any women.

Thus, the Bench opined that a woman employee cannot be discriminated on the basis of mode of appointment and each and every woman, who is an employee of any establishment, is entitled to get the maternity benefit, whatever be the mode of her appointment, subject to the condition that the contract of employment should subsist.

Accordingly, the petitioner was directed to file a fresh representation before the respondents, claiming maternity leave benefit for the period in question, and the respondent authorities were directed to take an appropriate decision and issue orders for payment of the arrears of honorarium. [Sarita Kumari v. State of Jharkhand, W.P. (S) No. 1124 of 2021, decided on 21-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Mr Shadab Bin Haque, Advocate

For the Respondents: Mr Achyut Keshav, GP-I

Case BriefsHigh Courts

Patna High Court: Chakradhari Sharan Singh, J., set aside the order of dismissal of a constable who was removed from service in relation to a viral video of him consuming alcohol on duty.

The petitioner, a constable had sought directions for quashing of the impugned order passed by the Superintendent of Police whereby the petitioner was dismissed from service.

The petitioner, at the relevant point of time, was posted as constable (driver) in a Police Station. Allegedly, on 15-09-2018 a video clip had become viral in which the petitioner was seen as consuming alcohol. An enquiry was ordered by the Inspector General of Police,  whereafter, the Sub Inspector of Police conducted an enquiry and found the petitioner guilty of consuming alcohol, and registered the FIR for the offences punishable under Section 30(a) & 37(a) of the Bihar Prohibition and Excise Act, 2016.

Opining that the conduct of the petitioner displayed lack of discipline, irresponsible behaviour and thereby, tarnished the image of the Police, the Disciplinary Authority had ordered dismissal of the petitioner.

Noticing that no specific finding was recorded by the Inquiring Authority based on the evidence adduced during the departmental enquiry that the petitioner was found consuming alcohol and that neither breath analyzer test nor any other scientific test was conducted to establish that the petitioner had consumed alcohol, the Bench opined that the finding of the Inquiring Authority was based on no evidence as nothing was produced to show that the liquid in the glass, which the petitioner was seen to be carrying in the video clip, was alcohol and the bottle located near him was containing alcohol.

Accordingly, the Bench opined that the department miserably failed to bring home the charge against the petitioner that he was consuming alcohol or was in possession of alcohol, in the absence of cogent evidence adduced by the department during the departmental enquiry.  Further, noticing that the enquiry report did not depict any participation of the Presenting Officer though a Presenting Officer was appointed, the Bench was of the view that the impugned decision of the Disciplinary Authority was wholly unjust, illegal, arbitrary and unsustainable.

Consequently, the impugned dismissal order was set aside and the respondent was directed to reinstate the petitioner with all consequential benefits including payment of full back wages for the period during which he remained out of service because of the order of dismissal. [Sonu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2225, decided on 22-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance:

For the Petitioner/s: Raju Giri, Advocate and Santosh Kumar Mishra, Advocate

For the Respondent/s: Manish Kumar, G.P.-4 and Ajay Kumar, A.C. to G.P.-4

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and AS Bopanna, JJ has held that the dependent of the deceased employee cannot seek the appointment on compassionate ground on the higher post than what was held by the deceased employee as a matter of right, on the ground that he/she is eligible fulfilling the eligibility criteria of such higher post.

Interpreting the term ‘suitable post’ under Rule 5 of the Dying-­In-Harness Rules, 1974, the Court held that ‘Suitable post’ has to be considered, considering status/post held by the deceased employee and the educational qualification/eligibility criteria is required to be considered, considering the post held by the deceased employee and the suitability of the post is required to be considered vis a vis the post held by the deceased employee, otherwise there shall be no difference/distinction between the appointment on compassionate ground and the regular appointment.

Explaining by way of an example, the Court said that

“In a given case it may happen that the dependent of the deceased employee who has applied for appointment on compassionate ground is having the educational qualification of Class¬II or Class-I post and the deceased employee was working on the post of Class/Grad IV and/or lower than the post   applied, in that case the dependent/applicant cannot seek the appointment on compassionate ground on the higher post than what was held by the deceased employee as a matter of right, on the ground that he/she is eligible fulfilling the eligibility criteria of such higher post.”

The Court said that allowing so shall be contrary to the object and purpose of grant of appointment on compassionate ground i.e to enable the family to tide over the sudden crisis on the death of the bread   earner.

“… appointment on compassionate ground is provided out of pure humanitarian consideration taking into consideration the fact that some source of livelihood is provided and family would be able to make both ends meet.”

[State of Uttar Pradesh v. Premlata, 2021 SCC OnLine SC 872, decided on 05.10.2021]

Counsels:

For Appellant: Advocate Ruchira Goel

For respondent: Advocate Shashank Singh

*Judgment by: Justice MR Shah

Case BriefsSupreme Court

Supreme Court: In a case where a man, after being acquitted in a kidnapping case, had applied for the post of Constable in Central Industrial Security Force, the bench of Indira Banerjee and JK Maheshwari, JJ has held that the employer cannot be compelled to give appointment to such a candidate when the acquittal has been made on the basis of benefit of doubt.

“If a person is acquitted giving him the benefit of doubt, from the charge of an offence involving moral turpitude or because the witnesses turned hostile, it would not automatically entitle him for the employment, that too in disciplined force. The employer is having a right to consider his candidature in terms of the circulars issued by the Screening Committee. The mere disclosure of the offences alleged and the result of the trial is not sufficient. In the said situation, the employer cannot be compelled to give appointment to the candidate.”

Brief facts

  • The respondent was found involved in an offence of kidnapping for demand of ransom.
  • The Sessions Court acquitted him for the said charge because the complainant, who was abducted, turned hostile in the Court.
  • The respondent applied for the post of Constable in CISF and got selected through the Staff Selection Commission.
  • An offer of appointment for provisional selection to the post of Constable/GD was issued and the respondent was required to furnish the documents including attestation forms, certificate of character, character and antecedent certificate from local Station House Officer.
  • The respondent, while submitting the attestation form, specified the registration of the criminal case and acquittal from the charges in a trial by the competent court.
  • He was, however, not allowed to join training.
  • The Standing Screening Committee passed an order that respondent was not eligible for appointment.
  • The Madhya Pradesh High Court directed that the respondent be allowed to commence training with effect from 21.10.2013 and that he would be entitled for all consequential benefits including seniority, notional fixation of salary etc. but back wages were denied.

Analysis

The Court took the opportunity to explain the term ‘honourable acquittal’ and said that

if the acquittal is directed by the court on consideration of facts and material evidence on record with the finding of false implication or the finding that the guilt had not been proved, accepting the explanation of accused as just, it be treated as honourable acquittal.

“… if prosecution could not prove the guilt for other reasons and not ‘honourably’ acquitted by the Court, it be treated other than ‘honourable’, and  proceedings may follow.”

Th Court explained that the standard of proof required for holding a person guilty by a criminal court and enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing guilt of the accused is on the prosecution, until proved beyond reasonable doubt.   In case, the prosecution failed to take steps to examine crucial witnesses or the witnesses turned hostile, such acquittal would fall within the purview of giving benefit of doubt and the accused cannot be treated as honourably acquitted by the criminal court. While, in a case of departmental proceedings, the guilt may be proved on the basis of preponderance and probabilities, Hence, acquittal giving benefit of doubt would not automatically lead to reinstatement of candidate unless the rules provide so.

Applying these principles to the case at hand, the Court held that the respondent who wishes to join the police force must be a person of utmost rectitude and have impeccable character and integrity. A person having a criminal antecedents would not be fit in this category.

“The employer is having right to consider the nature of acquittal or decide until he is completely exonerated because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force.”

[Union of India v. Methu Meda, 2021 SCC OnLine SC 880, decided on 06.10.2021]

*Judgment by: Justice JK Maheshwari

 

Case BriefsSupreme Court

Supreme Court: The Division Bench of M.R. Shah* and A.S. Bopanna, J., clarified the law relating to “late entrant” under Pension Regulations for Army. The Bench stated,

“When the legislature, in its wisdom, brings forth certain beneficial provisions in the form of Pension Regulations from a particular date and on particular terms and conditions, aspects which are excluded cannot be included in it by implication.”

Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Armed Forces Tribunal (Srinagar Bench) by which the Tribunal had granted terminal/pensionary benefits to the respondent and directed the government to process his claim taking his qualifying service as 15 years as regards “late entrant” in terms of Regulation 15 of the Pension Regulations and to release the same together with arrears, the government had approached the Court seeking intervention.

Factual Fulcrum

The respondent was commissioned in the Indian Army (Armed Medical Corps) as a Short Service Commission Officer for a period of five years. Later on he was granted Permanent Commission on 28-01-1998 and thereafter he first became a Graded Specialist and then Classified Specialist.

By letter/application dated 15-04-2000, the respondent applied for resignation on the ground of lack of promotional prospects. At that time his actual date of superannuation at 56 years of age was 31-05-2014. The resignation application, having being initially rejected was later accepted vide order dated 31-01-2007 only after the intervention of the High Court, however, it was stated that he was not entitled to any terminal benefits except for encashment of leave. Aggrieved by the said order, the respondent approached AFT.

Stand taken by the Central Government   

The State argued that the Tribunal had materially erred in directing to consider the qualifying service of the respondent as 15 years as a “late entrant” under Regulation 15 of the Pension Regulations and had wrongly observed that the respondent submitted the request for “voluntary retirement”. The State contended that it was not a case of “voluntary retirement”, but of “resignation” by the respondent on the ground of lack of promotional prospects, therefore, the respondent should not be entitled to the benefit as “late entrant”.

It was submitted that even otherwise the respondent did not complete the qualifying service for the purpose of “voluntary retirement” at the time he applied for resignation and that he was not even eligible for premature retirement as he had rendered service for 15 years and 27 days while minimum qualifying service required for retirement, i.e., 20 years under Regulation 25(a).

Submissions by the Respondent

The respondent argued that in accordance with Pension Regulations, 2008, respondent’s pre-commission service as Research Scholar with Gandhi Medical College, Bhopal and as a Medical Officer with BHEL, totalling to 6 years 4 months and 6 days should also be counted towards his total qualifying pensionable service. Accordingly, it was submitted that thus the respondent’s total qualifying pensionable service was 22 years 11 months and 2 days.

The respondent submitted that his real intention was to seek premature retirement but he was told that since he had less than 10 years of service at that point of time, premature release before 10 years of service had to be termed as “resignation” and not as “premature retirement”; therefore his application was treated as one of “resignation” and not as “premature retirement” due to technical reason, even though the he had no intention to resign and thereby losing his service benefits.

Opinion and Analysis

“If we see the averments in the writ petition all throughout the word used by the respondent is “resignation”. Therefore, only as an afterthought and to get the benefit of “late entrant” under Regulation 15, now it is the case on behalf of the respondent that what was meant by him at that time was praying for ‘voluntary retirement’ and it was not an application for ‘resignation’”

Noticing that the respondent had accepted that on 15-04-2000 he was not eligible for “voluntary retirement” and therefore he used the word “resignation” to get out of the technical reason, the Bench stated that the respondent had tendered “resignation” for lack of promotional avenues/aspects and it was not a case of “voluntary retirement” as there is a distinction between “resignation” and “voluntary retirement” because a person can resign any time during his service, however, an officer cannot ask for premature/voluntary retirement unless he fulfils the eligibility criteria.

The Bench further observed that such issue cannot be dealt with on a charity principle, therefore, having tendered “resignation”, the respondent had to suffer the consequences and could not be permitted to take ‘U’ turn and say that what the respondent wanted was “premature retirement” and not “resignation”.

Applicability of Pension Regulations, 2008

Rejecting the argument of the respondent that as per Regulation 19(h) and 19(j) of the Pension Regulations, 2008 a period of service in a central autonomous body as well as period of ante-date of commission granted to an officer in respect of possession of a Post-Graduate Qualification should also be counted for the purpose of pensionable service, the Bench opined that case of the respondent would be governed by the Pension Regulations, 1961, which had no pari materia provisions like Regulation 19(h) and 19(j) of the Pension Regulations, 2008 since the respondent’s name was struck off from the Army Medical Corps in the year 2007 and Regulation, 2008 has no retrospective applicability.

Whether the respondent was entitled to the benefit of Regulation 15 as a “late entrant”?

According to Regulation 15 if an officer is not able to complete the minimum period of qualifying service, i.e., 20 years and before completing 20 years of service he is attaining the age of superannuation and is retired on reaching the prescribed age limit of compulsory retirement, but has completed 15 years of qualifying service, he is considered as a “late entrant” and is entitled to pensionary benefits by getting 5 years grace period. Hence, as the respondent did not retire on reaching the prescribed age limit for compulsory retirement, he could not be said to be a “late entrant”, therefore was not entitled to the pensionary benefits.

Decision

Resultantly, the impugned judgment and order passed by the AFT was hereby quashed and it was held that the respondent was not entitled to the terminal/pensionary benefits as a “late entrant” in terms of Regulation 15 of the Pension Regulations.

[Union of India v. Abhiram Verma, 2021 SCC OnLine SC 845, decided on 30-09-2021]

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Kamini Sharma, Editorial Assistant has put this report together 

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Appearance by:

For the Union of India: ASG Madhavi Divan

For the Respondent: Senior Advocate Vikas Singh

*Judgment by: Justice M.R. Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsTribunals/Commissions/Regulatory Bodies

Armed Forces Tribunal: The Division Bench of Justice Umesh Chandra Srivastava and  Vice Admiral Abhay Raghunath Karve, Member (A) denied to grant any relief to the person invalidated from service due to Alcohol Dependence Syndrome.

Brief facts of the case were that the applicant was enrolled in Army on 09-03-2002 as a Craftsman (CFN) and was invalided out from service on 28-03-2016 in low Medical Category due to ‘Alcohol Dependence Syndrome (Relapse) F-10.2’.

The applicant alleged that he was discharged from service under hatched conspiracy of unit which he was serving at the time of discharge by making false allegations in the back drop of his previous medical history i.e. Alcohol Dependence Syndrome, by sending him for frequent medical check-ups.

Evidently, the applicant stated drinking in 2007 and had been hospitalized for intoxication and his medical category was downgraded to S3 (T-24). His medical report suggested, ‘Due to lack of self control over his drinking habit, hence not attributable nor aggravated by military service’.

Alcohol Dependence Syndrome is primarily a disease where an individual cannot control his excessive drinking habits. This disease leads to being drunk while on duty and poor performance during discharge of official duties. Moreover, all efforts are made by military doctors and the organization to help a soldier who has become a victim of ‘Alcohol Dependence Syndrome’ and only when all efforts fail the soldier is invalided out on ground of ‘Alcohol Dependence Syndrome’.

The Bench took note of the fact that the applicant being habitual drinker refused to obey orders of superiors and was punished five times during the period 2010 to 2015, further, the said punishments were awarded in different units in which he served and not in the unit from where he was invalided out of service due to hatching of a conspiracy by the unit concerned, as alleged by the applicant.

Thus, keeping in view that applicant was awarded four punishments prior to induction in new unit; the Bench rejected the allegation that a conspiracy theory was hatched against the applicant. Moreover, the applicant had also earned five (red and black ink) entries and, therefore, could be categorized as a habitual offender.

In the light of the above, the Bench rejected the applicant’s contention that consuming alcohol in Army is not an offence as it is supplied in the organization, and held that there was no reason to interfere with the process and provide any relief to the applicant as, the Bench opined, the applicant was rightly invalided out of service being suffering from Alcohol Dependence Syndrome. [Ajit Kumar Singh v. Union of India, Original Application No 165 of 2016, decided on 03-09-2021]

Kamini Sharma, Editorial Assistant has put this report together

Appearance by:

Counsel for the Applicant: Advocate Yashpal Singh, Advocate Sachindra P Singh

Counsel for Union of India: Advocate Pandey

Case BriefsSupreme Court

Supreme Court: Sanjay Kishan Kaul and M.M. Sundresh*, JJ., had set aside Allahabad High Court’s decision whereby the High Court had declared the Regulation 101 framed under Intermediate Education Act, 1921 as unconstitutional. The Bench expressed,

“We have already noted the fact that “Outsourcing” as a matter of policy is being introduced throughout the State. It is one thing to say that it has to be given effect to with caution as recommended by the Seventh Central Pay Commission, and another to strike it down as unconstitutional.”

The State of Uttar Pradesh had preferred the instant appeals against the judgment of the Allahabad High Court wherein, it had held that Regulation 101 framed under the Intermediate Education Act, 1921 as amended is unconstitutional.

Sub-Section 4 of Section 9 of the Act, 1921 provides the State Government authority to modify or rescind or make any regulation in respect of any matter. Similarly, Section 16G of the Act deals with conditions of service of the head of institutions, teachers and other employees and Sub-section (2) facilitates the introduction of regulation which could be extended to various activities such as probation, scale of pay, transfer of service, grant of leave etc.

Regulation 101

Prior to amendment, Regulation 101 stated,

“Appointing Authority except with prior approval of Inspector shall not fill up any vacancy of non-teaching post of any recognized aided institution.”

However, with a view to regulate and curtail staff expenditure a policy decision was taken by the State of Uttar Pradesh to not create any new post in Class ‘IV’ category and wherever it may be necessary, the work may be carried out through “Outsourcing” which was backed by the recommendations of Sixth and Seventh Central Pay Commission. Following the said decision, Regulation 101 was again amended in 2013 which was notified on 24-04-2014. The effect of the said amendment was to make the post of Class “IV” employees which was hitherto supposed to be filled up by the institutions through “Outsourcing”. Therefore, the permanent posts were accordingly abolished, thereby, replacing the method of appointment by way of “Outsourcing.

Before The High Court

The High Court was of the opinion that Regulation 101 was unconstitutional being repudiate to Section 16G of the Act and the provisions of the U.P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971, and went onto observe that “Outsourcing” as a concept of making available the staff to perform Class “IV” jobs was unconstitutional, arbitrary and illegal contrary to Article 14 of the Constitution. The High Court held that Section 9(4) of the Act could be interpreted to give sufficient ammunition to sustain the impugned regulation.

Analysis and Opinion

Right to Aid

The Bench observed,

“We are dealing with a case where aid is not denied in toto but sought to be given in different form…when such a decision is made as a matter of policy and is being applied not only to educational institutions but spanning across the entire State in every department, one cannot question it and that too when there is no express arbitrariness seen on the face of it.”

Holding that right to get an aid is not a fundamental right, the Bench stated that a decision to grant aid is by way of policy decision and financial constraints and deficiencies are the factors which are considered relevant in taking any decision qua aid, including both the decision to grant aid and the manner of disbursement of an aid. Hence, even in a case where a policy decision is made to withdraw the aid, an institution cannot question it as a matter of right. On the contrary, an institution can never be allowed to say that the grant of aid should be on its own terms.

Minority and Non-Minority

“When it comes to aided institutions, there cannot be any difference between a minority and non-minority. A protection cannot be expanded into a better right than one which a non-minority institution enjoys.”

Thus, the Bench held that an institution receiving aid is bound by the conditions imposed and therefore expected to comply. Reliance was placed by the Court on T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, wherein it was held that, “any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority and put the matter beyond any doubt. A caveat was however entered and it was stated that the government regulations cannot destroy the minority character of the institution.”

Policy Decision

Noticing that Regulation 101 was in the form of a subordinate legislation, the Bench stated that challenge to a regulation stands on a different footing than the one that can be made to an enactment. Since, an executive power is residue of a legislative one, the exercise of said power i.e., the amendment of the impugned regulation, cannot be challenged on the basis of mere presumption. The Bench opined, once a rule is introduced by way of a policy decision, a demonstration on the existence of manifest, excessive and extreme arbitrariness is needed to challenge it.

Other Contentions

The Bench held that Section 9(4) of the Act is certainly of a wider important and power conferred to the State Government to give effect to the Act is unbridled.  Noticing that Regulation 101 had, prior to the amendment, imposed strict compliance of getting prior approval of the government, however except in Civil Appeal No. 2753 of 2021, no such approval had been granted, the Bench was of the view that it only indicated the real intention of the respondents/management which was to have their own recruitment other than anything else. The State had abolished the post though in an indirect way by providing for “Outsourcing”, holding that a court cannot create or sustain the aforesaid post, the Bench expressed,

 “‘Outsourcing’ per se is not prohibited in law. It is clear that recruitment by way of “Outsourcing” may have its own deficiencies and pit falls, however, a decision to take “Outsourcing” cannot be declared as ultra vires of the constitution on the basis of mere presumption and assumption.”

Relief

On the issue as to whether the institutions should be held responsible with respect to those who were recruited though contrary to the Impugned Regulation or not, the Bench stated,

“These persons are innocent civilians who got embroiled in the legal battle initiated by the management and made to fight as front-line soldiers.”

Accordingly, the impugned judgement was set aside and the Regulation 101 was upheld.  The appeals were allowed with the following directions:

(i) The respondents in Civil Appeal No 2753 of 2021 were directed to be confirmed by granting adequate approval as Class “IV” employees, having given prior approval.

(ii) The respondents and similarly placed persons who were recruited by the institutions were directed to be continued with the same scale of pay as if they were recruited prior to the amendment for which the entire disbursement was directed to be made by the institutions alone.

(iii) The State was directed to ensure that adequate mechanism is available for the proper implementation of “Outsourcing” while taking note of the recommendations made in the Seventh Central Pay Commission.

[State of Uttar Pradesh v. Principal Abhay Nandan Inter College, 2021 SCC OnLine SC 807, decided on 27-09-2021]

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Report by Kamini Sharma, Editorial Assistant, EBC Publishing Pvt. Ltd. 

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Appearance by:

Counsel for State of U.P.: Aishwarya Bhati, Additional Solicitor General and Advocate Harish Pandey

Counsel for the Respondents: Advocate Manish Kumar Gupta

*Judgment by: Justice M.M. Sundresh

Case BriefsSupreme Court

Supreme Court: The bench of Ajay Rastogi* and Abhay S. Oka, JJ has held that the decision of the Labour Court should not be based on mere hypothesis and it cannot overturn the decision of the management on ipse dixit. Stating that Labour Court’s jurisdiction under Section 11-A of the Industrial Dispute Act, 1947 although is a wide one but it must be judiciously exercised, the Court said,

“Judicial discretion, it is trite, cannot be exercised either whimsically or capriciously. It may scrutinize or analyse the evidence but what is important is how it does so.”

Factual Background

  • The respondent-­workman was dismissed from his services by the Standard Chartered Bank for drunkenness within the premises of the appellant-Bank and for manhandling and assaulting the senior officers and also hurling abuses at the management. The alleged delinquency had been committed on 12th January,1988.
  • The enquiry officer after holding enquiry in terms of the Bipartite Settlement and after due compliance of the principles of natural justice held the charges proved against the delinquent respondent and the disciplinary authority after due compliance, confirmed the finding recorded by the enquiry officer and punished him with the penalty of dismissal from service by an order dated 22nd August, 1991.
  • The Industrial Tribunal, However, revisited the record of enquiry and apprised the statement of the management witnesses and recorded a finding that the Bank management has “miserably failed” to establish the charges levelled against the respondent-workman and hence, set aside the order of dismissal from service and directed the appellant to reinstate the respondent-workman in service with full back wages, seniority and all the consequential   benefits attached to the post by its Award dated 14th September, 2006.
  • The High Court also upheld the said order.
  • The respondent-workman had attained the age of superannuation on 31st January, 2012 and during the period of litigation, he has throughout been paid his last wages drawn in terms of Section 17¬B of the Act 1947. The respondent-workman had been paid around Rs. 57 Lakhs.
  • The Supreme Court had, on 27th February, 2015, stayed the payment of back wages.

Analysis

It was argued that after the domestic enquiry was held to be fair and proper, the Tribunal has a limited scope to interfere with the findings recorded in the domestic enquiry and unless the finding is perverse and not supported by a piece of evidence, it was not open for the tribunal to interfere within the scope of Section 11¬A of the Industrial Disputes Act, 1947,

The Court noticed that once domestic enquiry was held it to be fair and proper, the Tribunal had a very limited scope to interfere in the domestic enquiry to the extent as to whether there is any apparent perversity in the finding of fact which has been recorded by the enquiry officer in his report of enquiry obviously, based on the evidence recorded during the course of enquiry and as to whether the compliance of the Bipartite Settlement which provides the procedure of holding enquiry is violated or the punishment levelled against the workman commensurate with the nature of allegation proved against him. However, if the punishment is grossly disproportionate, the tribunal will always be justified to interfere by invoking its statutory power under Section 11-A of the Act 1947.

“The scope of judicial review in the matter of domestic enquiry is to examine whether the procedure in holding domestic enquiry has been violated or the principles of natural justice has been complied with, or any perversity in the finding of guilt recorded during the course of domestic enquiry has been committed.”

The Court noticed that the Tribunal has converted itself into a Court of Appeal as an appellate authority and has exceeded its jurisdiction while appreciating the finding recorded in the course of domestic enquiry and tested on the broad principles of charge to be proved beyond reasonable doubt which is a test in the criminal justice system and has completely forgotten the fact that the domestic enquiry is to be tested on the principles of preponderance of probabilities and if a piece of evidence is on record which could support the charge which has been levelled against the delinquent unless it is per se   unsustainable or perverse, ordinarily is not to be interfered by the Tribunal, more so when the domestic enquiry has been held to be fair and proper.

The Court, hence, held that the Tribunal has completely overlooked and exceeded its jurisdiction while interfering with the finding recorded during the course of enquiry in furtherance of which, the respondent was dismissed from service and the High Court has also committed a manifest error while passing the judgment impugned.

However, looking to the peculiar facts of this case where the respondent-workman had been paid Rs.57,16,517.72 and had attained the age of superannuation on 31st January, 2012, stay was granted by this Court in reference to back wages by order 27th February, 2015, while upholding the order of penalty of dismissal from service dated 22nd  August, 1991 passed by the authority in the domestic enquiry, the Court directed that no recovery shall be made in reference to the payment which has been made over to the workman in the interregnum period.

[Standard Chartered Bank v. RC Srivastava, 2021 SCC OnLine SC 830, decided on 29.09.2021]

*Judgment by: Justice Ajay Rastogi

Know Thy Judge | Justice Ajay Rastogi

Case BriefsSupreme Court

Supreme Court: The bench of R. Subhash Reddy and Hrishikesh Roy*, JJ has held that retrospective seniority cannot be claimed from a date when an employee is not even borne in service.

Factual Background

  • The father of the respondent was working as a Home guard and after he died in harness, the respondent applied for compassionate appointment.
  • On 20.11.1985, order was issued by the Commandant, Bihar Home Guard forwarding the name of the respondent as one of the persons shortlisted for appointment on compassionate basis.
  • The appointment was conditional upon physical fitness certificate issued by the Civil Surgeon and the respondent was denied appointment as he was found deficient in the physical standards.
  • The recommended persons appeared in the Home Guard Headquarter as directed, but aggrieved, the respondent moved and obtained relief from the Patna High Court for appointment in Class IV post.
  • As the respondent was shortlisted for the post of Adhinayak Lipik, directed that the respondent be appointed to the post of ‘Adhinayak Lipik’ in the Homeguard Department, State of Bihar.
  • Following the above direction of the Supreme Court, the respondent was appointed on 27.2.1996.
  • Six years after joining service, an application was made on 10.9.2002 by the respondent claiming seniority from 1985 but the same was rejected by the authorities on the ground that the respondent was appointed in 1996 and not in 1985.

Analysis

Noticing that the respondent entered service only on 10.2.1996, the Court made clear that,

“The jurisprudence in the field of service law would advise us that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules, should not be allowed, as in so doing, others who had earlier entered service, will be impacted.”

Stating that the respondent was claiming seniority benefit for 10 years without working for a single day during that period, the Court held that precedence was being claimed over other regular employees who had entered service between 1985 to 1996.

It was, hence, held,

“In this situation, the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous.”

Important rulings

Shitla Prasad Shukla vs. State of UP, (1986)(Supp.) SCC 185

“The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the Court will not overturn the determination unless it would be unfair not to do so…”

Ganga Vishan Gujrati And Ors. Vs. State of Rajasthan, (2019) 16 SCC 28

“… retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade.”

[State of Bihar v. Arbind Jee, 2021 SCC OnLine SC 821, decided on 28.09.2021]

____________________________________________________

Counsels:

For appellant: Advocate Abhinav Mukerji

For respondent: Advocate Satvik Misra

*Judgment by: Justice Hrishikesh Roy

Know Thy Judge | Justice Hrishikesh Roy

Case BriefsSupreme Court

Supreme Court: In a case where an employee of the Rajasthan Rajya Vidyut Prasaran Nigam had suppressed the material facts of conviction in a case of trivial nature and penalty at the time of applying for the post, the bench of MR Shah* and AS Bopanna, JJ, has held that the reinstating such a person will be wholly untenable and unjustified as the question in such cases is of trust.

“The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment, i.e., while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case.”

Brief Facts

  • The respondent was appointed to the post of Technical Helper. The appointment of the respondent was subject to production of a character certification/verification report issued by the Superintendent of Police of the concerned District where he belongs.
  • On 5.8.2013, he was convicted by the Trial Court for the offences under Sections 341 and 323 IPC, however, given the benefit under the Probation of Offenders Act, 1958.
  • The respondent suppressed the material facts of conviction and penalty at the time of applying for the post in 2013 and also submitting a false declaration at the time of documents verification on 14.04.2015
  • While giving the benefit of Act 1958, the respondent-employee was ordered to be released on probation for good conduct.
  • Even subsequently such conviction of the respondent was confirmed, however, the Sessions Judge vide judgment dated 09.09.2015 granted the benefit of Section 12 of the Act 1958 to the respondent-employee which provides that a person shall not suffer disqualification attaching to the conviction.
  • On 06.05.2016, the respondent was terminated from the services for non-disclosure of material facts.

Some important judgments on employer’s right to terminate employee for non-disclosure of material facts

Secretary, Department of Home Secretary, A.P. v. B. Chinnam Naidu, (2005) 2 SCC 746

When a candidate suppresses material information and/or gives false information, he cannot claim any right for appointment or continuance in service.

Devendra Kumar v. State of Uttaranchal, (2013) 9 SCC 363

The pendency of a criminal case/proceeding is different from suppressing the information of such pendency. The case pending against a person might not involve moral turpitude but suppressing of this information itself amounts to moral turpitude. It is further observed that the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information and in that eventuality, the service becomes liable to be terminated, even if there had been no further trial or the person concerned stood acquitted/discharged.

Daya Shankar Yadav v. Union of India, (2010) 14 SCC 103

An employee can be discharged from service or a prospective employee may be refused employment on the ground of … suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal offence (even if he was ultimately acquitted in the criminal case).

Avtar Singh v. Union of India, (2016) 8 SCC 471

Even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate.

Ruling

The Court took note of the important fact that on the date of submitting an application and even at the time when declaration was filed on 14.04.2015, there was already an order of conviction against him. Even at the relevant time, the benefit of Section 12 of the Act 1958 was not granted to the respondent, which was given subsequently vide judgment of the Sessions Court dated 09.09.2015.

Further, from the judgment and order passed by the Sessions Court, it appeared that only submission on behalf of the respondent was with respect to granting the benefit of Section 12 of the Act 1958, hence, only with a view to get out of the disqualification of conviction, belatedly he preferred an appeal and obtained the order of granting the benefit of Section 12 of the Act 1958.

“Even otherwise, it is required to be noted that on getting the benefit of Section 12 of the Act 1958 subsequently by that itself the respondent 12 cannot get away of the allegations of suppression of material fact and filing a false declaration that neither any criminal case is pending against him nor he has been convicted by any court of law, which was filed on 14.04.2015.”

The Court held that if the correct facts would have been disclosed, the employer might not have appointed him. The question is of TRUST. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee.

“The choice/option whether to continue or not to continue such an employee always must be given to the employer. (…) such an employee cannot claim the appointment and/or continue to be in service as a matter of right.”

The Court, hence, held that, both, the Division Bench as well as the Single Judge have clearly erred in quashing and setting aside the order of termination terminating the services of the respondent on the ground of having obtained an appointment by suppressing material fact and filing a false declaration. The order of reinstatement is wholly untenable and unjustified.

[Rajasthan Rajya Vidyut Prasaran Nigam Limited v. Anil Kanwariya, 2021 SCC OnLine SC 739, decided on 17.09.2021]

______________________________________________________________

Counsels:

Senior Advocate Dr. Manish Singhvi, for appellants

Advocate Navin Prakash, for respondent-employee

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Case BriefsSupreme Court

Supreme Court: Explaining the difference between the degree of proof in a criminal proceedings and departmental proceedings, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that the burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct.

Here’s the elaborate law laid down by the Supreme Court in this point:

State of Haryana v. Rattan Singh, (1977) 2 SCC 491

In a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.

“It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. (…) The simple point is, was there some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny.”

Union of India v. P. Gunasekaran, (2015) 2 SCC 610

“In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal.”

The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

Under Articles 226/227 of the Constitution of India, the High Court shall not:

  • reappreciate the evidence;
  • interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
  • go into the adequacy of the evidence;
  • go into the reliability of the evidence;
  • interfere, if there be some legal evidence on which findings can be based.
  • correct the error of fact however grave it may appear to be;
  • go into the proportionality of punishment unless it shocks its conscience.

Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., (2005) 7 SCC 764

  • In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”.
  • Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules.
  • In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings.

Noida Entrepreneurs Association v. NOIDA, (2007) 10 SCC 385

The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public, whereas, the departmental inquiry is to maintain discipline in the service and efficiency of public service.

[Union of India v. Dalbir Singh, 2021 SCC OnLine SC 768, decided on 21.09.2021]

*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsSupreme Court

Supreme Court: The bench of R. Subhash Reddy* and Sanjiv Khanna, JJ has held that reinstatement with full back wages is not automatic in every case, where termination/dismissal is found to be not in accordance with procedure prescribed under law.

The ruling came in the matter where,

  • A Clerk-cum-Cashier was dismissed by the Allahabad Bank, alleging his involvement in the incident relating to burning of relevant Bank records.
  • The respondent was appointed in the Bank as Clerk–cum– Cashier on 23.09.1985 and he was placed under suspension on 13.02.1989 and dismissed from service vide Order dated 22.08.1991.
  • The Industrial Tribunal–cum–Labour Court found that though there was a strong suspicion, but there was no sufficient evidence to prove his misconduct to dismiss from service. However, on the ground that a case is made out by the management of loss of confidence, ordered payment of compensation of Rs.30,000/- in lieu of reinstatement.
  • The respondent, aggrieved by the award of the Industrial Tribunal–cum–Labour Court, seeking reinstatement with back wages, carried the matter to the High Court wherein it was held that suspicion, however, high may be, can under no circumstances be held a substitute to legal proof. The High Court, hence, directed reinstatement with all consequential benefits.
  • The directions issued by the High Court of Allahabad for reinstatement were stayed by this Court on 23.08.2019. During the pendency of these proceedings, the respondent – workman had attained age of superannuation.

Considering the aforementioned facts and circumstances, the Supreme Court held,

“Though, there was strong suspicion, there was no acceptable evidence on record for dismissal of the workman. However, as the workman has worked only for a period of about six years and he has already attained the age of superannuation, it is a fit case for modification of the relief granted by the High Court.”

Noticing that reinstatement with full back wages is not automatic in every case, where termination / dismissal is found to be not in accordance with procedure prescribed under law, the Court held that in the present case, the ends of justice would be met by awarding lump sum monetary compensation. It, hence, directed payment of lump sum compensation of Rs.15 lakhs to the respondent, within a period of eight weeks, failing which, the respondent will be entitled for interest @ 6% per annum, till payment.

[Allahabad Bank v. Krishan Pal Singh, 2021 SCC OnLine SC 751, decided on 20.09.2021]

______________________________________________

Appearances before the Court:

For Bank: Advocate Rajesh Kumar Gautam

For Respondent: Advocate Rakesh Taneja

*Judgment by: Justice R. Subhash Reddy

Know Thy Judge| Justice R. Subhash Reddy

Case BriefsSupreme Court

Supreme Court: In a case where a woman had sought compassionate appointment after her mother’s death in the year 2012, the bench of MR Shah* and Anirudhha Bose, JJ has held that the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment and since the word ‘divorced daughter’ has been added to Rule 3 of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules 1996 subsequently by Amendment, 2021, the respondent was not entitled to compassionate appointment.

[Note: Rule 2[1] and Rule 3[2] of the Rules 1996 do not include ‘divorced daughter’ as eligible for appointment on compassionate ground and even as ‘dependent’. The same was added to Rule 3 recently by Amendment, 2021.]

However, as straightforward as the case might look, the facts had a very interesting story to tell.

  • The mother of the original writ petitioner, who was employed with the Government of Karnataka as Second Division Assistant at Mandya District Treasury, died on 25.03.2012. The respondent, at that time, was a married daughter.
  • Immediately on the death of the deceased employee, the respondent initiated the divorced proceedings under Section 13B of the Hindu Marriage Act, 1955 on 12.09.2012 for decree of divorce by mutual consent.
  • By Judgment dated 20.03.2013, the Learned Principal Civil Judge, Mandya granted the decree of divorce by mutual consent.
  • Immediately on the very next day i.e. on 21.03.2013, the respondent, on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground.

Taking note of the aforementioned chronology of dates and events, the Court opined that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained. Otherwise, as a married daughter she was not entitled to the appointment on compassionate ground.

Interestingly, the High Court had directed the appointing authority to grant compassionate   appointment to the respondent after interpreting Rule 3 of the Rules, 1996 by putting “divorced daughter” in the same class of an unmarried or widowed daughter.

The said judgment was, however, erroneous as per the ruling in N.C. Santhosh v. State of Karnataka, (2020) 7 SCC 617, wherein it was held that

(i) the compassionate appointment is an exception to the general rule;

(ii) no aspirant has a right to compassionate appointment;

(iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;

(iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State’s policy and/or satisfaction of the eligibility criteria as per the policy;

(v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.

Taking note of point number (v), the Court said that,

“… only ‘unmarried daughter’ and ‘widowed daughter’ who were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be ‘dependent’ of a deceased Government servant and that ‘an unmarried daughter’ and ‘widowed daughter’ only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant.”

Calling the High Court’s decision erroneous, the Court said that

“…even if it is assumed that the ‘divorced daughter’ may fall in the same class of ‘unmarried daughter’ and ‘widowed daughter’ in that case also the date on which the deceased employee died, the respondent herein was not the ‘divorced daughter’ as she obtained  the divorce by mutual consent subsequent to the death of the deceased employee.”

Hence, the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee.

[Director of Treasuries in Karnataka v. V. Somyashree, 2021 SCC OnLine SC 704, decided on 13.09.2021]

[1] 2.   Definitions:­

(1)   In   these   rules, unless the context otherwise requires:­

(a) “Dependent   of   a   deceased   Government servant” means­

(i) in   the   case   of   deceased   male   Government servant, his widow, son, (unmarried daughter and widowed daughter) who were dependent upon him; and were living with him; and

(ii) in the case of a deceased female Government servant,   her   widower,   son,   (unmarried daughter   and   widowed   daughter)   who   were dependent upon her and were living with her;

(iii) ‘family’ in relation to a deceased Government servant means his or her spouse and their son,   (unmarried   daughter   and   widowed daughter) who were living with him.

(2)     Words   and   expressions   used   but   not defined shall have the same meaning assigned to   them   in   the   Karnataka   Civil   Services (General Recruitment) Rules, 1977.

[2] Rule 3(2)(ii):­

(ii)   in the case of the deceased female Government servant;

(a) a son;

(b) an   unmarried   daughter,   if   the   son   is   not eligible or for any valid reason he is not willing to accept the appointment;

(c) the widower, if the son and daughter are not eligible or for any valid reason they are not willing to accept the appointment.

(d) a widowed daughter, if the widower, son and unmarried daughter are not eligible or for any valid reason they are not willing to accept the appointment.

*Judgment by: Justice MR Shah

Know Thy Judge | Justice M. R. Shah

Appearances before the Court by:

For State: Advocate V.N. Raghupathy

For Respondent: Advocate Mohd. Irshad Hanif

Case BriefsSupreme Court

Supreme Court: The bench of L. Nageswara Rao v. BR Gavai*, JJ has set aside the judgment of the Aurangabad bench of the Bombay High Court wherein it was held that the reservation of the Office of Mayor for the Dhule Municipal Corporation for Backward Class (OBC) for a second term, coupled with the fact that there has been no reservation for the Scheduled Caste category, amounted to violation of rotation policy.

Facts

  • The respondent No.1 though belongs to the Scheduled Caste category, was elected as a Councillor to the Dhule Municipal Corporation from the General category. By the Notification dated 27th November 2019, the Office of Mayor in the said Corporation was earmarked for Backward Class of Citizens for the next term of two and half years commencing from June, 2021.
  • Respondent number 1 challenged the aforementioned Notification on the ground that from the year 2003 onwards, the Office of Mayor in the said Corporation was reserved for Backward Class category on various occasions, but was not reserved for Scheduled Caste category.
  • Bombay High Court held that the reservation of the Office of Mayor for the Dhule Municipal Corporation for Backward Class (OBC) for a second term even without any reservation for Scheduled Caste category.
  • The said judgment was challenged on the ground that the import of Clauses (d) and (e) of sub­rule (2) of Rule 3 of the Maharashtra Municipal Corporations (Reservation of Offices of Mayors) Rules, 2006 was not considered by the High Court while deciding the matter.

Analysis

Interpreting a Statute

Explaining the rules for interpreting a Statute, the Court said,

“… the Court will have to prefer an interpretation which makes the Statute workable. The interpretation which gives effect to the intention of the legislature, will have to be preferred. The interpretation which brings about the effect of result, will have to be preferred than the one which defeats the purpose of the enactment.”

It is the duty of the Court to construe the Statute as a whole and that one provision of the Act has to be construed with reference to other provisions so as to make a consistent enactment of the whole Statute.

“It is the duty of the Court to avoid a head-on clash between two sections and construe the provisions which appear to be in conflict with each other in such a manner so as to harmonise them.”

Further, while interpreting a particular statutory provision, it should not result into making the other provision a “useless lumber” or a “dead letter”. While construing the provisions, the Court will have to ascertain the intention of the law¬making authority in the backdrop of dominant purpose and   the underlying intendment of the Statute

The Legislative Intent behind the Rules in question

The impugned Rules are mechanism for giving effect to the constitutional mandate under Article 243T of the Constitution of providing reservation for Scheduled Castes and Scheduled Tribes and the   enabling provision for providing reservation for Backward Class of Citizens in proportion to their population.

The intent and the dominant purpose of Rule 3 of the said Rules is to provide reservation to Scheduled Castes, Scheduled Tribes, Backward Class of Citizens and Women and further to ensure that there is no  repetition  of reservation  of  a particular category  in a particular Corporation.

The intent of the said Rules is to give effect to the reservation policy while ensuring that reservations are not repeated in particular Corporations and at the same time in all the Corporations, there shall be reservation, at some point of time, for all the eligible categories by rotation.

The legislative intent is to exclude the Corporations which were earlier reserved for a particular category until all the categories are provided reservation.  However, while doing so, the Court will have to interpret Rule 3 of the said Rules in such a manner that this scheme is made workable and not frustrated.

True import of the Rules in question

The Court took note of the dominant purpose and the legislative intent of the said Rules which is to provide reservation in proportion of the population of such categories in the Municipal areas and also to ensure that while all the eligible Corporations get reservation at some point of time for the different categories, at the same time there would be no repetition of reservation until the rotation   is complete. However, while doing so, the number of seats reserved for a particular category also cannot be ignored.

“… the total number of seats reserved for Scheduled Castes are 3 whereas for Backward Class of citizens, they are 7. Sub-rule (2) of Rule 3 of the said Rules prescribes the manner in which the seats are to be allotted to be reserved for various categories including women. Clause (a) thereof provides that it shall be done by notification in the Official Gazette by allotment of draw of lots. Clause (d) thereof provides that while drawing lots, the offices of Mayors reserved for such category in the earlier years shall be excluded from the draw of lots for those categories. Clause (e) thereof provides that the offices of Mayors to be reserved shall be rotated in   the subsequent terms of office of Mayor to such Corporation, in which no reservation has been made in the previous terms until such reservations are given by rotation to each category.”

Applying the rules of interpretation, the Court noticed that at the first blush, an isolated reading of clause (e) is capable of being interpreted in a manner that until reservation is provided for each category by rotation, the said office cannot be reserved for a category for which it was already reserved. However, if the Rules along with Article 243T of the Constitution and Section 19(1A)[1] of the Maharashtra Municipal Corporations Act, 1949 are read as a whole, then the dominant purpose behind the said Rules appears to be that the reservation as mandated in the Constitution, should be provided for offices of Mayors in the Corporations.

“While doing so, the reservation has to be provided by a draw of lots. It has to be ensured that at any given point of time, the number of offices of Mayors reserved for such categories should not be less than the number determined in accordance with the provisions of sub-rule (1) of Rule 3 of the said Rules.”

Clause (d) of sub-rule (2) of Rule 3 of the said Rules also provides that while drawing lots, the offices of Mayors reserved for such category in the earlier years, shall be excluded from the draw of lots for those categories. The purpose appears to ensure that the reservation is not thrust upon a particular Corporation again and again and all the Corporations, at some point of time, will have the office of Mayor reserved for particular category in accordance with the said Rules.

The Court explained,

“The office of Mayor can be reserved for Scheduled Tribes in only 9 Corporations whereas all the Corporations are eligible for reservation for Scheduled Castes and Backward Class of Citizens.  However, taking into consideration the fact that the number of seats reserved for Scheduled Castes are 3 whereas for Backward Class of Citizens, they are 7 i.e. more than twice,  it is quite probable that the post of Mayor could be reserved for two earlier terms for Backward Class of Citizens and whereas no reservation is provided for Scheduled Castes.”

The Court noticed that a harmonious construction of the said Rules would not lead to a conclusion that the procedure as followed by the State Government in allotting the reservation by draw of lots, would be said to be inconsistent with the scheme of the said Rules.

The Court then took note of the following facts,

  • After excluding 12 Corporations which are already reserved for Scheduled Castes in the earlier years and the one which was reserved for Scheduled Tribes in the first draw of lots, there were 14 Corporations available including the Dhule Municipal Corporation.
  • The said Corporation was also included in the draw of lots for Scheduled Castes. However, in the draw of lots, it could not be reserved for Scheduled Castes.
  • However, insofar as Backward Class is concerned, out of 27 Corporations, 26 Corporations excluding newly created Panvel Corporation were already reserved for Backward Class in the earlier years.
  • As such, the State excluded the 7 Corporations which were immediately reserved for the Backward Class and also excluded the 4 Corporations which were reserved for Scheduled Castes and Scheduled Tribes in the present draw of lots.
  • Coincidentally, in the draw of lots, Dhule Municipal Corporation was one of the 7 Corporations which got to be reserved for the Backward Class.

The Court, hence, held that such a situation is bound to occur in view of the difference in number of seats, reserved for Scheduled Castes and Backward Class of Citizens.

“If the interpretation as placed is to be accepted then unless the post of Mayor is reserved for Scheduled Tribes in all the Corporations to complete the rotation, it will not be possible to provide reservation for the categories which were already reserved earlier.  However, it could be seen that as per the Rules, only 9 Corporations could be reserved for Scheduled Tribes.”

[Sanjay Ramdas Patil v. Sanjay, 2021 SCC OnLine SC 650, decided on 01.09.2021]

[1] “19. Mayor and Deputy Mayor

(1) …

(1A) There shall be reservation for the office of the Mayor   in   the   Corporation,   by   rotation,   for   the Scheduled   Castes,   the   Scheduled   Tribes,   women and   the   Backward   Class   of   citizens,   in   the prescribed manner.”

Judgment by: Justice BR Gavai

Know Thy Judge| Justice B.R. Gavai

Appearances before the Court:

For appellants: Senior Advocate Meenakshi Arora and Advocate Braj Kishore Mishra

For the State of Maharashtra: Advocate Sachin Patil

For Respondent: Advocate Nishant Ramakantrao Katneshwarkar

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Ajay Rastogi, JJ has referred the question as to whether there would be a cut-off date under paragraph 11(3) of the Employees’ Pension Scheme to a larger bench. The larger bench will also decide whether the decision in R.C. Gupta v. Regional Provident Fund Commissioner Employees Provident Fund Organization, (2018) 4 SCC 809 would be the governing principle on the basis of which all these matters must be disposed of.

What was held in RC Gupta case?

In R.C. Gupta v. Regional Provident Fund Commissioner Employees Provident Fund Organization, (2018) 4 SCC 809, the Court had held that

“… the reference to the date of commencement of the Scheme or the date on which the salary exceeds the ceiling limit are dates from which the option exercised are to be reckoned with for calculation of pensionable salary. The said dates are not cut-off dates to determine the eligibility of the employer-employee to indicate their option under the proviso to Clause 11(3) of the Pension Scheme.

In RC Gupta case, the Court was dealing with a matter where the employer had deposited 12% of the actual salary and not 12% of the ceiling limit of Rs 5000 or Rs 6500 per month, as the case may be. In such a case, the Court held that a beneficial scheme, in our considered view, ought not to be allowed to be defeated by reference to a cut-off date.

“We do not see how exercise of option under Para 26 of the Provident Fund Scheme can be construed to estop the employees from exercising a similar option under Para 11(3). If both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, exercise of option under Para 26 of the Provident Scheme is inevitable. Exercise of the option under Para 26(6) is a necessary precursor to the exercise of option under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11(3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated.”

The Court had explained that if both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, exercise of option under Para 26 of the Provident Scheme s inevitable. Exercise of the option under Para 26(6) is a necessary precursor to the exercise of option under Clause 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11(3) of the Pension Scheme unless the circumstances warranting such foreclosure are clearly indicated.

It was, hence, noticed that all that the Provident Fund Commissioner is required to do is an adjustment of accounts which in turn would have benefited some of the employees. At best what the Provident Commissioner could do was to seek a return of all such amounts that the employees concerned may have taken or withdrawn from their provident fund account before granting them the benefit of the proviso to Clause 11(3) of the Pension Scheme. Once such a return is made in whichever cases such return is due, consequential benefits in terms of this order will be granted to the said employees.

Why is the decision required to be re-visited?

Senior Advocate C.A. Sundaram invited the Court’s attention towards the difference between the Provident Fund Scheme and the Pension Scheme.

Under Provident Fund scheme, the contributions made by the employer and the employees during the employment of the employee would be made over to the employee along with interest accrued thereon at the time of his retirement. Thus, the obligation on the part of the operators of the Provident Fund Scheme would come to an end, after the retirement of the employee; whereas the obligation under the Pension Scheme would begin when the employee retired. The liability was only to pay interest on the amount deposited and to make over the entire amount at the time of his retirement.

Under Pension scheme, it would be for the operators of the Pension Scheme to invest amount deposited in such a way that after the retirement of the concerned employee the invested amount would keep on giving sufficient returns so that the pension would be paid to the concerned employee not only during his life time but even to his family members after his death. If the option under paragraph 11(3) of the Scheme, was to be afforded well after the cut-off date, it would create great imbalance and would amount to cross-subsidization by those who were regularly contributing to the Pension Scheme in favour of those who come at a later point in time and walk away with all the advantages.

Hence, it was submitted that the emphasis on investment of the amount in both the funds would qualitatively be of different dimension.

This difference was enunciated in Krishena Kumar Vs. Union of India, (1990) 4 SCC 207 and was not noted in the subsequent decision in R.C. Gupta. Submitting that it would not be a mere adjustment of amount to transfer from one fund to another as stated in R.C. Gupta case, it was submitted before the Court that the decision in R.C. Gupta was required to be re-visited.

The Court, hence, noted that

“These, and the other submissions touching upon the applicability of the principle laid down in the decision in R.C. Gupta1 go to the very root of the matter. Sitting in a Bench of two Judges it would not be appropriate for us to deal with said submissions. The logical course would be to refer all these matters to a Bench of at least three Judges so that appropriate decision can be arrived at.”

The matter has hence, been referred to a larger bench.

[Employees’ Provident Fund Organisation v. Sunil Kumar B., 2021 SCC OnLine SC 630, decided on 24.08.2021]

Case BriefsSupreme Court

Supreme Court: Dealing with the issue relating to the right of promotion under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, the bench of Sanjay Kishan Kaul and R. Subhash Reddy, JJ has held that a person with disability should be considered for promotion along with other persons working in the feeder cadre.

The Court explained that the mandate of Section 32 of the 1995 Act enjoins the government to identify posts that can be filled up with persons with disability. Thus, even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PwD.

“There cannot be methodology used to defeat the reservation in promotion. Once that post is identified, the logical conclusion would be that it would be reserved for PwD who have been promoted. The absence of rules to provide for reservation in promotion would not defeat the rights of PwD to a reservation in promotion as it flows from the legislation.”

The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted which came into force on 7th February, 1996. In 2007, India ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). In pursuance to the debates in the Standing Committee of the Parliament, The Rights of Persons with Disabilities Act, 2016 replaced the 1995 Act.

The Court made clear that the 2016 Act has now taken care of how to deal with the aspect of reservation in promotion. However, the law in the present case was required to be propounded as a large number of cases may still arise in the context of the 1995 Act.

“Even under the 1995 Act, the rights of PwD, and how they would attain an equal opportunity has been an ongoing exercise blocked by a greater impediment of a social mind set change and the 2016 Act is the result thereof.”

Background

The Court was hearing the case where the respondent was appointed in 1996 to the post of Typist/clerk in the Police Department on compassionate grounds, after her brother had passed away during service. She undisputedly suffered from Post Polio Residual Paralysis (L) Lower Limb and her permanent disability had been assessed at 55%.

The respondent subsequently cleared all departmental tests for promotion, and was test qualified in December, 1998. She was given a category change to Lower Division clerk in July, 2001 without losing her seniority and later on promoted as Senior Clerk (equivalent to Upper Division Clerk) on 16th September, 2004, based on the seniority list of test qualified LDCs.

She was thereafter promoted to the post of a Cashier on 5th May, 2015.

She, however, contended that she was entitled to promotion as a Senior Clerk with effect from 1st July, 2002 with all consequential benefits and as a Cashier with effect from 20th May, 2012 with all consequential benefits and thereafter as Junior Superintendent with effect from the date of her entitlement. This plea was predicated on reservation in matters of promotion which she sought under the 1995 Act as she suffered from physical disability.

What does the law state?

The Court held that the 1995 Act mandates reservations in promotions for persons with disabilities as it provides for equal opportunity for career progression, including promotion. Thus, it would be negation of the legislative mandate if promotion is denied to PwD and such reservation is confined to the initial stage of induction in service. This would in fact result in stagnation of the disabled in a consequential frustration.[1]

Further, the operation of reservation and the computation has to be made with reference to the total number of vacancies in the cadre strength and no distinction should be made between posts to be filled by direct recruitment and by promotion.

However, it is important to note that,

  • there has to be rules providing for promotion from the feeder cadre to the provisional post as there cannot be promotions even for the PwD de hors the rules as a singular benefit.
  • the requirement under Section 32 of the 1995 Act has also to be completed for identifying the posts in the promotional cadre.

What happens when the State does not provide for any reservation in promotion for PwD?

The mandate of Section 32 of the 1995 Act enjoins the government to identify posts that can be filled up with persons with disability and the absence of rules to provide for reservation in promotion would not defeat the rights of PwD to a reservation in promotion as it flows from the legislation. Thus, even posts in promotional cadre have to be identified for PwD and such posts have to be reserved for PwD. The identification of such posts is no doubt a prerequisite for reservation in promotion for PwD.

“There cannot be methodology used to defeat the reservation in promotion. Once that post is identified, the logical conclusion would be that it would be reserved for PwD who have been promoted.”

The only caveat to the aforesaid would be if the Government is of the view that the posts in the promotional cadre cannot be reserved for PwD category due to functional or other reasons and that should not be a ruse to defeat the reservation in promotion.

Understandably, such a scenario will result in frustration and stagnation as others may get promoted even over the persons with disability as submitted by the learned Amicus Curiae, more often than not, the disability comes in the way of meeting the requirements for promotion. In such a situation, the government will have to explore methods to address the issue of stagnation of PwD.

In the aforesaid eventuality, Amicus Curiae suggested:

(a) to provide promotional avenues in other departments/establishments (where posts are identified for PwD at a higher level) or

(b) grant of higher pay in the same post. This is stated to be an obligation flowing from Section 47 of the 1995 Act.

“… non-discrimination in employment is a mandate of the legislature.”

[State of Kerala v. Leesamma Joseph,  2021 SCC OnLine SC 435, decided on 28.06.2021]

*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Gaurav Agrawal as Amicus Curiae

S.K. Rungta,  Senior Counsel and Archit Verma, Legal Consultant in the office of Chief Commissioner for Persons with Disabilities.

[1] Viklang Sang Haryana vs, State of Haryana, 2011 SCC OnLine P&H 4266

Case BriefsSupreme Court

Supreme Court: In a case where a woman had sought compassionate appointment for her son 10 years after her husband had gone missing, the bench of L. Nageswara Rao and S. Ravindra Bhat, JJ refused to grant the said relief and held,

“As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondent’s son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.”

Background

The respondent’s husband was an Operator, Helper Category (Category II) at Gidi Washery. He had gone missing in the year 2002. A charge-sheet was issued by Central Coalfields Limited to the Respondent’s husband for desertion of duty since 01.10.2002 and an inquiry was conducted in which the Respondent participated on behalf of her husband. On the basis of Inquiry Officer’s report, the Respondent’s husband’s services were terminated with effect from 21.09.2004.

The Respondent filed a suit in the Court of the Additional Munsif, Hazaribagh seeking a declaration of civil death of her missing husband. The said suit was decreed with effect from the date of filing of the suit i.e. 23.12.2009 by a judgment dated 13.07.2012.

The Respondent then made a representation on 17.01.2013 seeking compassionate appointment for her son which was rejected on 03.05.2013 on the ground that the Respondent’s husband was already dismissed from service and therefore, the request for compassionate appointment could not be entertained.

Jharkhand High Court’s decision

The High Court was of the opinion that the reasons given by the employer for denying compassionate appointment to the Respondent’s son were not justified. There was no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement.

Supreme Court’s ruling

Explaining the object behind grant of compassionate appointment, the Court explained,

“The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family[1].”

However, compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future.

The object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a significant lapse of time and after the crisis is over.

In the present case, it cannot be said that there was any financial crisis created immediately after Respondent’s husband went missing in view of the employment of the Respondent. Though the Court agreed with the High Court’s views that the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, it was of the opinion that the Respondent’s son cannot be given compassionate appointment at this point of time.

“The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondent’s husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondent’s son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.”

[Central Coalfields Limited v. Parden Oraon, 2021 SCC OnLine SC 299, decided on 09.04.2021]

[1] Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138

*Judgment by: Justice L. Nageswara Rao

Know Thy Judge| Justice L. Nageswara Rao

Case BriefsHigh Courts

Tripura High Court: Akil Kureshi, CJ., dismissed a writ petition which was filed by the petitioner praying for regularizing her in service w.e.f. 14-02-2002, i.e. on completion of 10 years of service with all consequential benefits.

Counsel for the petitioner, Mr Arijit Bhowmik however submitted that the expectation of the petitioner was for being granted regularization w.e.f. 01-07-2008 as provided in office memorandum dated 01-09-2008 issued by the State Government.

The petitioner was appointed as temporary fixed pay worker (clerical) under an order dated 15-02-1992 by the Notified Area Authority, Dharmanagar. This Notified Area Authority was later on upgraded as Dharmanagar Nagar Panchayat and thereafter to the status of Dharmanagar Municipal Council. All the employees of the Notified Area Authority automatically became the employees of Dharmanagar Municipal Council. Under an office memorandum dated 14-12-2012 the Finance Department, Government of Tripura granted its concurrence for regularization of temporary workers. Accordingly, the petitioner was regularized by an order dated 20-12-2012 with effect from the said date. The grievance of the petitioner was that such regularization was granted prospectively from the date of the order instead of regularizing her services w.e.f. 01-07-2008 as provided in office memorandum dated 01-09-2008.

Counsel for the respondent, Mr R.G. Chakraborty and Mr Rajib Saha contended that regularization of daily rated or contingent staff was subject to concurrence of the Finance Department which was granted only in the year 2012. The regularization, therefore, cannot be granted with retrospective effect.

The Court after perusing the office memorandum observed that the eligibility criteria was that the DRW, Casual or Contingent Workers should have been engaged prior to 31-03-2003 and should have completed 10 years full-time work on 01-07-2012. The cut-off date of 31-03-2008 as envisaged in office memorandum dated 01.09.2008, for the workers of Municipal Council and Panchayats was shifted to 01-07-2012. Further, the eligible workers would be provided the pay scale in the entry level scale from prospective date of joining the regular scale post. This office memorandum thus did not envisage granting regularization from retrospective effect.

The Court while dismissing the petition held that petitioner cannot seek the benefit of regularization from any date anterior to the date of order of regularization.

[Vaswati Sharma v. State of Tripura, 2021 SCC OnLine Tri 270 decided on 13-05-2021]

Suchita Shukla, Editorial Assistant has put this report together