Uttarakhand High Court
Case BriefsHigh Courts

   

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

Facts:

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

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

Arguments:

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According to the appellants, after 2001, the 1985 Regulations of the Uttar Pradesh Forest Development Corporation were no longer applicable.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

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

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

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

Observation and Analysis:

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

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

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

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


Advocates who appeared in this case :

Counsel for Appellants: Mr. Bhagwat Mehra, Advocate

Counsel for Respondents: Mr. Abhijay Negi, Advocate

Mr. K.N. Joshi, Deputy Advocate General

Mr. V.K. Kapruwan, Advocate


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

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Anil Kshetrapal, J., addressed the validity of the order granting extension in the service to respondent 6 on the post of General Secretary Haryana in Indian Red Cross Society for a period more than 3 years. The Court stated,

In absence of enabling powers in the Service Rules, the President had no inherent power to travel beyond the Service Rules. Once, the Service Rules have been framed, notified and adopted then the State or its instrumentalities are required to follow the same. The Rules are framed/notified in order to regulate. If the authorities at the highest level do not adhere to the Rules, then the Court is left with no choice but to intervene.”

 The President of the society (Haryana Branch) on 02-12-2013 appointed respondent 6 as General Secretary on a tenure post of three years, the appointment had been made under Rule G(b) Chapter III of the proposed IRCS-Uniform Rules, State/UT Branches Male/Circulated by National Headquarter, New Delhi under Section 5 of the Indian Red Cross Society Act, 1920. Thereafter, vide Notification dated 15-12-2017, the Managing Body of the Red Cross Society with the previous approval of the President of the Society notified Rules known as “Indian Red Cross Society Branch Committee Rules, 2017”. The petitioner completed his tenure of three years on 04-12-2019 and on 02-06-2020, an order had been issued, extending the tenure of the petitioner till his superannuation i.e. 30-04-2022. The petitioner contended that the authorities had no power to extend the tenure.

The Court observed, as per Rule 6, the President was the appointing authority for the post of General Secretary. Rule 9, provided that all direct recruitment shall be made through advertisement in the newspaper. Rule 10 provided that the post of General Secretary can be filled up from two sources i.e. either by direct recruitment or by promotion. However, the appointment shall be subject to ratification by the Managing Committee of Indian Red Cross Society, Haryana. The tenure of respondent 6 came to an end on 04-12-2019. At that stage, the competent authority had two options; either to appoint through direct recruitment and therefore constitute a selection committee or decide to fill up the post by promotion. The authority did not choose to go by what was provided in the Rules. Rather, the tenure of the respondent was extended arbitrarily and the same was not even ratified by the managing committee.

Therefore, it was held that, extension given in the service was beyond the scope of the Staff Rules, 2017 and was liable to be set aside. [Sumer Singh v. Indian Red Cross Society,  2021 SCC OnLine P&H 59, decided on 06-01-2021]

Case BriefsHigh Courts

Allahabad High Court: Sudhir Agarwal, J., found a government servant to be guilty of the offence of bigamy.

The instant petition was filed against the decision passed by the Senior Superintendent of Police, Agra dismissing the petitioner from the post of Fireman and therefore mandamus was sought to direct respondent not to interfere in working of the petitioner as a fireman and to pay his full salary for the period of suspension.

Another challenged placed by the petitioner was with regard to the validity of Rule 29 of the U.P. Government Servants Conduct Rules, 1956, claiming the same to be unconstitutional.

Factual matrix

Petitioners wife i.e. respondent 5 had alleged him of bigamy since he had married another woman.

Petitioner submitted that respondent 5 was married to his maternal uncle and after his death, she started living with an elder maternal uncle from whom she conceived a child also. She has also been receiving the pension of his maternal uncle. Further, he added that there is no relationship between husband and wife with respondent 5 and on the other hand he married Anita Yadav in the presence of all relatives and friends.

Further, the petitioner added that respondent 5’s motive and the intent was only to extract some monetary benefits from him.

In view of respondent 5’s complaint, petitioner was suspended.

Chief Fire Officer, Agra in his report submitted that there was no evidence of respondent 5’s marriage with the petitioner. However, both were living together and their relationship resulted in the birth of a child.

S.P. City Agra in his report submitted that respondent 5 and the petitioner were married. In 1994, petitioner without respondent 5’s knowledge solemnised the second marriage. Respondent 5 on knowing the said fact took various legal steps and also filed maintenance applications, wherein she was awarded the same by Additional Chief Judicial Magistrate.

Thereafter, a regular disciplinary proceeding was initiated against the petitioner under the U.P. Subordinate Police Officers (Punishment and Appeal) Rule, 1991, after the enquiry was completed, petitioner was held guilty of bigamy and, therefore, guilty of misconduct under Rule 29 of Conduct Rules, 1956.

Disciplinary Authority in light of the above-stated passed the impugned order of dismissal.

Analysis and Decision

Judicial Review

Bench observed that in the cases pertaining to the disciplinary enquiry, the scope of judicial review is very limited and is confined to the extent of decision-making process and not to appreciate the decision itself unless it is found to be vitiated in law on account of malafide, bias or in violation of natural justice, or in case it can be shown that the findings recorded in the disciplinary proceedings are based on no evidence at all.

With regard to the contention that the charge of bigamy is false and there is no proof or evidence showing the valid marriage of the petitioner with respondent 5 i.e. Munni Devi, counsel for the petitioner submitted that there was no evidence of solemnization of marriage between the petitioner and Munni Devi who claimed to be his legally wedded first wife. It is also submitted that assuming that the petitioner and Munni Devi were living together and maintaining a relationship of husband and wife, yet in the absence of any proof of solemnization of marriage it cannot be held that the petitioner was guilty of bigamy and therefore violated Rule 29 of the Conduct Rules.

A very significant observation made by the Court was that,

Admittedly there was no evidence showing solemnization of marriage with Hindu rituals but there was evidence that petitioner and Munni Devi married in Court, blessed with a daughter out of their relationship of living together as husband and wife and in various documents Munni Devi was shown as the wife of the petitioner.

In these circumstances, Bench stated that it cannot be stated that the findings recorded by the Enquiry Officer and accepted by the Disciplinary enquiry that the petitioner was guilty of bigamy are based on no evidence at all. The evidence of a marriage between the petitioner and Munni Devi does exist and the sufficiency or adequacy thereof is not within the realm of judicial review of this Court.

Court cited the decision of Supreme Court, R.S. Saini v. State of Punjab, (1999) 8 SCC 90, wherein it was held that the standard of proof required in disciplinary proceedings is that of the preponderance of probability and where there is some relevant material which the competent authority has accepted and such material if can reasonably support the conclusion drawn by the disciplinary authority regarding the guilt of the employee, the court will not reappreciate such evidence to arrive at a different conclusion since the question of adequacy or reliability of evidence can not be canvassed before the court.

In Bombay High Court’s decision of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416, it was held that the disciplinary authority, is the sole judge of the facts if the enquiry has been properly conducted. If there is some evidence on which the findings can be based then adequacy or even reliability of that evidence is not a matter to be canvassed before the Court

Hence, in view of the above discussion, petitioners contention that he was not guilty of bigamy was not accepted.

The validity of Rule 29 of the Conduct Rules

Petitioner contended that Rule 29 is arbitrary, unjust and illegal, no guidelines have been given as to when the permission will be granted for the purpose of second marriage under the proviso to the said rule and therefore, it is ultra vires.

Bench found the above-stated submission to be wholly baseless and misconceived.

No law, custom or practice has been brought to the notice of the Court showing that solemnizing more than one marriage is necessary religious or otherwise activity.

Decades ago people used to marry more than once inspite of having spouse living. It is said that in Muslim Personal Law, marriage with four women is permissible.

However, to the knowledge of the court, no personal law maintains or dictates it as a duty to perform more than one marriage.

No religious or other authority has been brought to Court’s notice providing that marrying more than one woman is a necessary religious sanction and any law providing otherwise or prohibiting bigamy or polygamy would be irreligious or offence the dictates of the religion.

Polygamy cannot be said to be an integral part of any religious activity, may be Hindu, Muslim or any other religion.

A distinction has to be drawn between religious faith, belief and religious practices. Even Article 25 of the Constitution guarantees only the religious faith and belief and not the religious practices which if run counter to public order or health or policy of social welfare which the state has embarked, then the religious practices must give way before the good of the people of the state as a whole.

Bench also observed that various statutes have prohibited both bigamy and polygamy.

A Division Bench of this Court also considered the validity of Rule 27 of the U.P. Government Servant (Conduct) Rules (old) prohibiting bigamy in the case of Ram Prasad Seth v. State of Uttar Pradesh, 1960 SCC OnLine All 128 and the  Court observed that there is no law, making it necessary to solemnize a second marriage. It was held that even under the Hindu religious belief marrying a second wife in order to obtain a son when the first wife can not provide one was only a practice followed by the people and not a sanction or mandate of law.

In view of the above discussion, the Court held that Rule 29 cannot be said to be non-arbitrary or illegal and ultra vires.

Concluding with its decision, Bench held that

In any country where bigamy is an offence, a government servant guilty of committing an offence cannot ask to continue in service after award of the minor or lesser punishment.

In view of the above, petition was dismissed. [Veerpal Singh v. SSP, Agra, 2006 SCC OnLine All 1628, decided on 18-05-2006]


Read more:

Bigamy [S. 494 IPC, S. 17 Hindu Marriage Act]

Case BriefsHigh Courts

Karnataka High Court: Krishna S. Dixit and P.N. Desai, JJ., while allowing a writ petition by a civil servant, observes,

“Government being a model employer cannot act like the East India Company of the bygone days”

The present writ petition is sought by a Civil Servant of the State, challenging an order dated 12-08-2020, made by, the Kalaburagi bench of the Karnataka State Administrative Tribunal (‘KSAT’), denying relief against the unilateral termination of his deputation by the borrowing department (RDPR) on the ground of ‘efflux of time.’ The series of events are categorically stated hereunder:

  1. That vide notification dated 09-05-2017, the Karnataka State Government sent the petitioner on deputation to the respondent 1; RDPR department.
  2. That vide notification dated 02-06-2017, the RDPR department posted the petitioner as an Assistant Executive Engineer, project subdivision – Vijayapur.
  3. That vide notification dated 15-07-2017, the RDPR department further transferred the petitioner as a Technical Assistant, project division – Bagalkot.
  4. That the aforementioned notification was called in question through application no. 4434 of 2014 and the KSAT had thereby allowed the petitioner to continue at his previous position by an interim order against the last deputation.
  5. That the borrowing department vide notification dated 27-02-2020, unilaterally cancelled the deputation of the petitioner and sent him back to his parent department; PWD.
  6. That the petitioner challenged this notification in application no. 1270/2020, which was eventually denied by the KSAT vide an order, and hence the petitioner has sought relief through the instant Writ Petition. 

Observations

The Court made significant remarks with respect to deputation in public services.

Citing the Supreme Court decision in, State of Punjab v. Inder Singh, (1997) 8 SCC 372, wherein it was said, “Concept of deputation is well understood in service law and has a recognized meaning. Deputation has a different connotation in service law and the dictionary meaning of the word deputation is of no help. In simple words, deputation means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per recruitment rules. Whether the transfer is outside the normal field of deployment or not is decided by the authority who controls the service or post from which the employee is transferred. There can be no deputation without the consent of the person so deputed.”

The Court further cited Rule 50 of the Karnataka Civil Services Rule, which reads as,

“50(1). When a Government Servant is permanently transferred or deputed from one department to the other, under the provisions of Rule 16 of General Recruitment Rules, 1977, he will draw pay in the new post at the same stage in which he was drawing in the old post and earn the next increment on the date on which he would have earned it had he continued in the old post.”

Decision

While issuing the writ of certiorari, the Court directed respondents 1 & 2 to restore the petitioner to the office which he had held on deputation immediately preceding the impugned notification dated 27-02-2020. It further said that the borrowing department has sent the petitioner back to the parent department abruptly and unilaterally, without any prior consultation with the lending department, which infact, is in deep contravention of the service rules.[C.B. Chikkalagi v. State of Karnataka, WP No 226384 of 2020, decided on 28-09-2020]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. dismissed an appeal seeking directions for an appointment based on the subsequent waiting list when the selected candidate and the waitlisted candidate did not report.

The petitioner had offered his candidature for selection against the post of Accounts Assistant (ST category) by the Jammu and Kashmir Services Selection Board. The board, at the culmination of the selection process, forwarded the selection list containing the name of a lone candidate along with a waiting list, also containing the name of only one candidate. While the Department had yet to act on the selection list so forwarded to it by the Board, the petitioner made a representation addressed to the Directorate General, Accounts and Treasuries, bringing it to his notice that the selected candidate and the candidate figuring in the waiting list had tendered affidavits stating that they did not intend to join, and requesting him to direct the concerned authorities to process his case for appointment in accordance with norms as his candidature was on top in the subsequent waiting list. The request was rejected by the board as there were no rules for appointment of a candidate whose name is neither in the selection list and nor in the waiting list.

The petitioner feeling aggrieved by the above rule moved to the Court.

The issue for determination was: whether a candidate in a selection process securing a merit position below the waitlisted candidate can lay a claim for selection and appointment against the advertised post in the event the waitlisted candidate does not join against the post when the appointment is offered to him on account of non-joining of the selected candidate

Learned counsel for the petitioner Nissar Ahmad, submitted that since the petitioner’s name was there in the merit list after the waitlisted candidate, who did not join against the post, a right has accrued to him for being appointed against the post, but the respondents were unjustifiably denying him such right. It was also averred that the respondent had not shown any legal infirmity in denying appointment order in favour of the petitioner.

Learned counsels for the respondent D.C Raina and Mir Suhail, submitted before the Court that there was no rule to provide a supplementary waiting list and this position was clarified by the Board earlier in terms of communication. It was further stated in the reply that since the petitioner’s name did not figure either in the select list or the waiting list he had no right or locus to claim selection and appointment against the post. Furthermore, Rule 14 of Jammu and Kashmir Civil Service Decentralization and Recruitment Rules Act, 2010 (2010 Rules) which governs the selection process did not provide any provisions for making an appointment from the subsequent waiting lists. Thus, they requested the Court to dismiss the petition.

 The Court observed that since the 2010 Rules was the governing statute for the appointment to the concerned post and it did not provide any provision regarding making of a subsequent waiting list for the purpose of filling a seat, the same cannot be de done as it would be violating the provisions of the statute. The Court also relied on the Judgment given in the case of Prem Singh v. Haryana SEB, (1996) 4 SCC 319 in which Supreme Court very clearly observed that appointment on more than the advertised seats cannot be allowed as the governing provision laid no rules regarding that. The Court, thus, dismissed the petition.[Liyakat Hussain Baniya v. State of Jammu and Kashmir, 2019 SCC OnLine J&K 442, decided on 17-05-2019]

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: The Bench of Ramesh Ranganathan, CJ. and N.S. Dhanik, J. allowed a special appeal by State of Uttarakhand, preferred against the order of learned Single Judge, setting aside the same impugned order.

Facts, to the limited extent necessary, are, the respondent was Class IV employee in Inter Rural Road Construction Scheme, started by Government of Uttar Pradesh under the supervision of Cane and Sugar Commissioner. The State of Uttar Pradesh bifurcated in Uttarakhand formerly known as Uttaranchal in 2000, and the respondent opted to be located in Uttarakhand for his service till the date of superannuation. The respondent had contended earlier that he was paid all the retiral benefits but a pension. The Government denied his pension stating that such benefits are applicable to the ‘government servants’ only and being in the service of Road Construction Scheme he is not deemed to be a ‘government servant’.

The learned Single Judge, relied on the Supreme Court judgment and granted the order in favor of the respondent earlier, he further stated that judgment of the Supreme Court was binding and there is no substance in the contentions of State. Supreme Court, in Vinod Kumar Goel v. State of Uttrakhand, (Civil Appeal No. 2511 of 2004 and 227 of 2014, Order dated 10-01-2004) where the matter in issue was exactly same, held, that “the Supreme Court has never rejected the contention earlier, that aggrieved individual was not a ‘government servant’ when working under the Cane Commissioner. Further, it was held by  Court that, “Rules of the State were applicable to the appellant for the purpose of superannuation and other consequential benefits; the earlier decision was binding on both the parties; and the respondents could not deny the retiral benefits, including pension, to the appellant.”

Aggrieved by the order of learned Single Judge, the State including the Commissioner, filed the appeal to the Court. The contentions of the appellant were that, the alleged proceedings before the Commissioner were not challenged by the respondent and the order passed in 1997 was the basis of the judgment of the Supreme Court. Hence, the order of the Commissioner in 2006 is valid and respondent’s inaction was not considered by the Single Judge while adjudication. The Commissioner has earlier observed that, there were no separate rules for the employees and officers working in the headquarters, districts, and areas under the Scheme, due to which various kinds of difficulties were arising in taking decisions in establishment related cases, the employees and officers of the Scheme would be covered by the Service Rules, as are applicable from time to time, in equivalent posts of the Cane Development Department. The Commissioner clarified that any other provision, and order prevailing in this regard, will not qualify any employee, employed under the Scheme, as a Government employee.

The appellant emphasized on the order of the Commissioner in 2006, which was relevant at the time when the respondent’s claim was decided and eventually ignored by the respondent, it was the only order which was effective as on that date, and was effective on the date of superannuation therefore, the claim of respondent was liable to be dismissed and rejected by the learned Single Judge. They further contended that the ruling of the Supreme Court was also not in conformity with the order passed by the Commissioner in 2006 but that of in 1997.

High Court, based on the aforementioned contentions of the appellant, set aside the order passed by the learned Single Judge in favor of respondent and issued a direction that it shall examine, the question whether, in view of the subsequent order passed by the Commissioner in 2006, the orders of the Supreme Court, based on the earlier order of the Commissioner in 1997, would apply to the case of the respondent.[State of Uttrakhand v. Gopal Singh Bisht, 2019 SCC OnLine Utt 340, Order dated 01-05-2019]

Case BriefsHigh Courts

Allahabad High Court: Deciding upon the issue of rejection of the candidature of the appellants  to the posts of Constables and other equivalent posts in Uttar Pradesh Police on medical grounds, the Court held that  Appendix 5(3)(d) to Rule 15(f) of the U.P. Police Constables and Head Constables Services Rules, 2008 is unreasonable and arbitrary as it does not give sufficient time to file an appeal and secondly, in the absence of reasoned order any appeal is an empty formality, thus, arbitrary and violates Article 14 of the Constitution.

Challenging the vires of the provisions of the 2008 Rules, the petitioners contended that non-furnishing of the reason for rejection was totally illegal and arbitrary. The impugned provision provided that:

“(d) Any candidate not satisfied by his medical examination, shall file an appeal on the day of examination itself. No appeal with respect to the medical examination shall be entertained if the candidate fails to appeal on the day of his medical examination and announcement of the result of the same. The appeal should be disposed of by the medical Board constituted for the purpose within one month of the appeal being filed.”

Perusing the record, the Court observed that in all the cases the candidates’ appeals had been rejected in a mechanical manner without assigning any reason, and the order of the Appellate Medical Board appeared to be a rubber stamp decision, which did not inspire confidence. As the 2008 Rules  provided only an appeal, there was no provision of revision or review. Hence in the absence of a reason, the appeal is illusory inasmuch as the candidate does not know the ground on which it was rejected. The Court observed “that assignment of reasons is imperative in nature. The judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. It is a trite law that even if a statute is silent and it does not provide the principles of natural justice or are not embodied in rule, if by an order a statutory authority affects a citizen with civil or evil consequences, it must meet the test of reasonableness. Civil consequences cover everything that affects a citizen’s civil life.” The Court further observed that is trite that in the realm of diagnosis and treatment there is a scope for genuine difference of opinion. Hence a brief description of the deficiency with a brief reason is necessary to eschew the arbitrariness.

The Court summarised its directions as follows:

  • The provision of Appendix 5(3)(d) to Rule 15 of the Rules, 2008, “on the day of the examination itself. No appeal with respect to the medical examination shall be entertained if the candidate fails to appeal on the day of his medical examination and announcement of the result of the same” is struck down as arbitrary and ultra vires.
  • A fresh Appellate Medical Board shall be constituted within two months, as directed above. A candidate, who is aggrieved by the order of the Medical Board, may file an appeal to the Appellate Medical Board within two weeks. The freshly constituted Appellate Medical Board shall continue in future recruitments also until appropriate amendment is made in the Rules, 2008;
  • In the existing Appellate Medical Board at the Divisional level one doctor shall be of the rank of Professor of a Medical College nominated by the Principal of the concerned college.
  • The petitioners’ appeals shall be considered by the newly constituted Appellate Medical Board.

[Vandana  v.  State of Uttar Pradesh, 2016 SCC OnLine All 619,  decided on August 10, 2016]