Case BriefsHigh Courts

Patna High Court: The Three-Judge Bench of Ashwani Kumar Singh, Birendra Kumar and Anil Kumar Upadhyay, JJ. disposed of an appeal arising out of a reference made by the Division Bench of this Court, in view of conflicting judgments on the aspect of maintainability of a claim for compassionate appointment of a child born from the second marriage of deceased employee, while the first marriage is subsisting.

A circular issued in 2005 under by the Personnel and Administrative Reforms Department of Government of Bihar declared that if a government servant marries while earlier marriage is subsisting, without the permission of the government, then such spouse and the ward of such spouse would be disentitled for appointment on compassionate ground. In a petition filed before this Court, the learned Single Judge quashed the said circular and directed the petitioner authority to appoint minor-respondent herein (whose father died in harness and who was the son of deceased’s second wife) on compassionate grounds. 

The Court relied on Union of India v. V.R. Tripathi, 2018 SCC OnLine SC 3097 where the right to compassionate appointment to child of second marriage was acknowledged under Section 16(1) and 16(3) of the Hindu Marriage Act, 1955 (HMA); and where it was held that while designing a policy of compassionate appointment, State can prescribe the terms on which it can be granted. However, while making a scheme/ rule, State could not lay down conditions inconsistent with Article 14 of the Constitution of India.

It was opined that once Section 16 of HMA regards a child born from a marriage entered into while the earlier marriage is subsisting to be legitimate, the State could not exclude such a child from seeking the benefit of compassionate appointment. An employer, who is amenable to Part III of the Constitution, could not deny the benefit of compassionate appointment available to other legitimate children. Such a condition of exclusion would be arbitrary and ultra vires as it would bring out unconstitutional discrimination between legitimate children, who form one class.

If a government servant performs the second marriage, it would amount to misconduct committed in service. In such a case, if he is proceeded against for such misconduct while in service and misconduct is proved, the government may be free to take any action against such employee and the same may be a relevant consideration for denying the prayer for compassionate appointment of dependents of the deceased employee. However, if no disciplinary proceeding is initiated for any misconduct against an employee while in service; after his death, his dependents cannot be denied compassionate appointment on the ground that while in service, the employee had been guilty of misconduct.

It was observed that appointment on compassionate ground is not a source of recruitment but an exception to the general rule, the purpose of which is to prevent destitution and penury in the family of a deceased employee. Application for compassionate appointment must be decided on facts of each individual case. Therefore, the impugned order was modified and the subject circular was quashed to the extent it prevented children of the second wife from being considered for appointment on the compassionate ground; with a direction to the appellant to consider the claim of the respondent for appointment on compassionate ground on merit.[Bihar State Electricity Board v. Chadra Shekhar Paswan, 2019 SCC OnLine Pat 562, decided on 18-04-2019]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Dhiraj Singh Thakur, J., dismissed a writ petition filed against the order of the Deputy Chief Electoral Officer, whereby re-poll had been ordered for the post of a Sarpanch in the Panchayat Halqa Upper Sanai, Block Surankote.

The main issue that arose before the Court was whether the Deputy Chief Electoral Officer was justified in ordering re-poll while the matter was pending for enquiry before the Deputy Commissioner.

The Court observed that the difference of a number of votes between the candidates was 13 and the total number of missing votes was 25. The enquiry as given under Rule 37 of the Rules framed under the J&K Panchayati Raj Act, is limited to the extent of determining whether the votes had been lost or destroyed. In the instant case, it was alleged that 25 votes had gone missing after some persons entered the polling booth, who were related to one of the people contesting elections. This vitiated the sanctity of the election and hence a re-polling was suggested and subsequently ordered.

The Court held that the report about 25 votes gone missing was clear and unambiguous and hence the order of re-polling does not violate the provisions of the J&K Panchayati Raj Act. The Court held that the manner of arriving at the decision for ordering re-poll does not suffer from any illegality or perversity. Resultantly, the petition was dismissed.[Abdul Karim v. State of J&K, 2018 SCC OnLine J&K 864, order dated 26-11-2018]

Case BriefsForeign Courts

Supreme Court of Zambia: An appeal was filed before a 3-Judge Bench comprising of M. Malila, C. Kajimanga and J.K. Kabuka, JJS., against the order where respondent’s entitlement to the pension was decided in favour of respondent.

The facts of the case were that the respondent was a member of the National Pension Scheme Authority retiring at the age of 55 with 137 contributions to the National Pension Scheme Authority (NAPSA). The fact that the provision for normal pension benefit required minimum 180 contributions resulted into payment of only a lump sum pension benefit, mandatory to be granted by virtue of Section 21 of the National Pension Scheme Act, 1996, Chapter 256 of the Laws of Zambia which was denied to him. The matter went before the trial court where respondent was granted lump sum pension amount on the above reasoning. Appellant preferred an appeal before the High Court where on the facts of the case it was found that the respondent was entitled to pension from the appellant. It is the above order against which appellant filed the present appeal before the Supreme Court. Respondent further filed a cross-appeal questioning the validity of Regulation 3 of the National Pension Scheme (Benefits and Eligibility) Regulations 2000 which widens the scope of persons who qualify beyond what is provided in Section 18 of the Act, pleading it to be ultra vires the act being inconsistent with Section 18 of the Act.

Appellant contended that he had the discretion to pay or not pay the lump sum amount to the respondent under Section 9(3) irrespective of the fact whether minimum required contributions were made or not and if such power is interfered with then it would undermine the entire essence of a scheme of pension. Whereas the respondent argued that the mandatory nature of Section 21 shows that appellant had no discretion whether to pay or not pay lump sum pension amount to respondent.

Supreme Court was of the view that discretionary power of the appellant cannot neglect the mandatory nature of Section 21 of the Act. With respect to the cross-appeal, Court held it to be ultra vires the Act to the extent of its inconsistency with Section 18. Therefore, appeal was dismissed upholding respondents cross-appeal. [National Pension Scheme Authority v. Phillip Stuart Wood,2018 SCC OnLine ZMSC 2, dated 25-10-2018]

Case BriefsHigh Courts

Karnataka High Court: A Single Judge Bench comprising of Vineet Kothari, J., decided a writ petition filed under Articles 226 and 227 of the Constitution, wherein the Court quashed the penalty imposed by the Karnataka State Human Rights Commission upon the petitioner-Inspector of Police; holding such power to be ultra vires.

A penalty of Rupees Ten thousand was imposed on the petitioner on the ground of service deficiency in arresting two juveniles and producing them as adults before the competent court instead of the Juvenile Justice Board. Learned counsel for the petitioner argued that Section 18 of the Protection of Human Rights Act, 1993, permits the Human Rights Commission only to recommend the government or authority concerned to make payment of compensation to the victim or his family. However, vide the impugned order, the Commission imposed a penalty of Rupees Ten thousand and further directed it to be deducted from salary of the petitioner. The counsel prayed for quashing of the said order.

The High Court perused the record and considered the submissions made on behalf of the parties. The Court also perused Section 18 of the said Act and found favour with the contentions of learned counsel for the petitioner mentioned hereinabove. The Court was of the opinion that the impugned order passed by the Commission could not be construed to be in the nature of mere recommendations as envisaged in the section. On the contrary, it imposed penalty and directed its recovery from the petitioner, which power is not conferred to the Commission under Section 18 of the Act.

Consequently, the Court allowed the writ petition and quashed the impugned order. [Venkatesh v. State of Karnataka, WP No. 55766 of 2016 (GM-RES), order dated 13.2.2018]