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According to the appellants, after 2001, the 1985 Regulations of the Uttar Pradesh Forest Development Corporation were no longer applicable.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=

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu & Kashmir and Ladakh High Court: On the issue of whether wait list candidates can be considered for filling up vacancies caused due to resignation of appointed candidates, the Division Bench of Pankaj Mithal, CJ., and Moksha Khajuria Kazmi, J., observed that “a select/waiting list prepared may remain operative and valid for a period of one year, but that would only be for a limited purpose of appointing the selected/wait list candidates on the vacancies which remains unfilled due to non-joining of the selected candidate for one reason or the other.”

Facts and legal trajectory of the case: The Jammu and Kashmir Service Selection Board had issued an Advertisement notification on 30-12-2014, inviting applications for the position of Junior Engineers (Civil), in which the respondents had applied. As per the selection list notified on 29-04-2016, the respondents were placed in the waiting list. The selected candidates were appointed on 25-05-2016, but when two selected candidates failed to join, two other waitlist candidates were appointed as replacements.

Subsequently, when other selected candidates resigned to pursue their selection as Assistant Engineers in terms of the same advertisement; the respondents claimed appointment for these vacancies, since they were on the waitlist.

Furthermore, they filed a writ petition, seeking relief to keep the select list operational for one year, so that they can join as Junior Engineers when any other selected candidates resign. This writ petition was allowed by the learned Single Judge of the High Court. The Selection Board challenged this decision before the Division Bench of the High Court.

Issues: The main issue before the Court was whether on the resignation of appointed candidates, the vacancy that arises would be a fresh vacancy or would be the same vacancy as advertised which can be filled up from the select panel or the wait list?

Analysis and findings:

The Court perused the Jammu and Kashmir Civil Services Decentralization and Recruitment Rules, 2010, R. 14(7), to answer the primary question. It was noted that the provision is divided into two parts wherein “the first part provides for preparation of a select/wait list which will remain operative for a year for consideration of the names of wait list candidates against drop out vacancies; and the second part lays down that the selection committee shall not recommend any wait list candidate for any future vacancy or any vacancy caused due to resignation of any selected candidate after he was appointed”.

It was observed that R. 14(7) clearly states in a mandatory form that the selection committee shall not maintain or recommend any select or waiting list candidate for any future vacancy or any vacancy caused on account of resignation by any selected candidate who gets appointed. “The language of the provision is clear enough to establish that no candidate from the select list or waiting list shall be appointed on any vacancy which is caused due to resignation of a selected candidate joining the post”. In support of this view the Court discussed several cases, namely, Shankarsan Dash v. Union of India, (1991) 3 SCC 47; Manoj Manu v. Union of India, (2013) 12 SCC 171.

Conclusively, the Division Bench held that the Single Judge had erred in law in allowing the writ petition and directing the respondents to operate the waiting list even against the vacant posts caused by resignation of the candidates. The previous order was set aside and the petition was dismissed.

[State of JK v. Danish Zia Bhat, 2022 SCC OnLine J&K 513, decided on: 27-06-2022]


Advocates who appeared in this case :

D.C. Raina, AG with M. A. Chashoo, AAG and Sajad Ashraf, GA, Advocate, for the Appellants;

Z.A. Shah, Sr. Adv. with A. Hanan, Advocate, for the Respondents.

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of UU Lalit, S. Ravindra Bhat and PS Narasimha*, JJ has overruled the decision in Y.V. Rangaiah v. J. Sreenivasa Rao (1983) 3 SCC 284 wherein it was held that, “the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules”. The Court held that the same does not reflect the correct proposition of law governing services under the Union and the States under part XIV of the Constitution as there is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose.

Issue

Whether appointments to the public posts that fell vacant prior to the amendment of the Rules would be governed by the old Rules or the new Rules?

Analysis

Noticing that a number of decisions have followed Rangaiah on the question at hand but far more decisions have distinguished it, the Court decided to examine the issue afresh and came to the conclusion that the broad proposition formulated in Rangaiah did not reflect the correct constitutional position. The Court observed that,

“The principle in Rangaiahs case has given rise to a number of decisions, most of them have disapplied Rangaiah and have in fact, watered-down the principle while distinguishing it.”

What was held in Rangaiah?

The question that arose in Rangaiah’s case related to the mandatory obligation under the old rules to prepare an approved list of candidates and also the number of persons to be placed in the list as per the vacancies available. It is in this context that the Court observed that the vacancies would be governed by the old rules.

The Court, hence, in the present case, observed,

“This decision is not to be taken to be laying down an invariable principle that vacancies occurring prior to the amendment of the rules are to be governed by old rules. It is important to note that the Court has not identified any vested right of an employee, as has been read into this judgment in certain subsequent cases.”

Constitutional status of a person in employment with the State

Going through a number of authorities, the Court culled out the following principles governing the status of a person employed with the State that led to the conclusion that the status of a Government employee involves a relationship governed exclusively by rules and that there are no rights outside these rules that govern the services:

  • Except as expressly provided in the Constitution, every person employed in the civil service of the Union or the States holds office during the pleasure of the President or the Governor (Article 310). Tenure at pleasure is a constitutional policy for rendering services under the state for public interest and for the public good.
  • The Union and the States are empowered to make laws and rules under Articles 309, 310 and 311 to regulate the recruitment, conditions of service, tenure and termination. The rights and obligations are no longer determined by consent of the parties but by the legal relationship of rights and duties imposed by statute or the rules. The services, thus, attain a status.
  • The hallmark of status is in the legal rights and obligations imposed by laws that may be framed and altered unilaterally by the Government without the consent of the employee.
  • In view of the dominance of rules that govern the relationship between the Government and its employee, all matters concerning employment, conditions of service including termination are governed by the rules. There are no rights outside the provision of the rules.
  • In a recruitment by State, there is no right to be appointed but only a right to be considered fairly. The process of recruitment will be governed by the rules framed for the said purpose.
  • Conditions of service of a public servant, including matters of promotion and seniority are governed by the extant rules. There are no vested rights independent of the rules governing the service.
  • With the enactment of laws and issuance of rules governing the services, Governments are equally bound by the mandate of the rule. There is no power or discretion outside the provision of the rules governing the services and the actions of the State are subject to judicial review.

Decisions impliedly overruling Rangaiah

After going through several judgments that followed or distinguished the decision in Rangaiah, the Court came to the conclusion that the said decision is confined to the facts of that case.

The Court reviewed fifteen cases that have distinguished Rangaiah and have carved out the following exceptions to the broad proposition formulated in Rangaiah.

  1. There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah’s case must be understood in the context of the rules involved therein.
  2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the “rule in force” as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates.
  3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government. There is no obligation for the Government to make appointments as per the old rules in the event of restructuring of the cadre is intended for efficient working of the unit. The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14.
  4. The principle in Rangaiah need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately.
  5. When there is no statutory duty cast upon the State to consider appointments to vacancies that existed prior to the amendment, the State cannot be directed to consider the cases.

The Court, hence, noticed,

“The consistent findings in these fifteen decisions that Rangaiah’s case must be seen in the context of its own facts, coupled with the declarations therein that there is no rule of universal application to the effect that vacancies must necessarily be filled on the basis of rules which existed on the date which they arose, compels us to conclude that the decision in Rangaiah is impliedly overruled. However, as there is no declaration of law to this effect, it continues to be cited as a precedent and this Court has been distinguishing it on some ground or the other, as we have indicated hereinabove.”

Conclusion

(a) The statement in Rangaiah that, “the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules”, does not reflect the correct proposition of law governing services under the Union and the States under part XIV of the Constitution. It is hereby overruled.

(b) The rights and obligations of persons serving the Union and the States are to be sourced from the rules governing the services.

[State of Himachal Pradesh v. Raj Kumar, 2022 SCC OnLine SC 680, decided on 20.05.2022]


*Judgment by: Justice PS Narasimha


Counsels

For State: Senior Advocate P.S. Patwalia, assisted by Advocate-on-Record Abhinav Mukerji

For Respondents: Advocate Prasanjit Keshvani

For other Respondents: Senior Advocate Ravindra Kumar Raizada, assisted by Advocate-on-Record Divya Roy

Case BriefsSupreme Court

Supreme Court: Taking note of the depleting strength of the members of the NCLT and NCLAT, the 3-judge bench of L. Nageswara Rao, Hemant Gupta and S. Ravindra Bhat, JJ has issued certain directions and has asked the Government to complete the reappointment process “at the earliest and not later than two months”.

The direction came in the petition filed by the National Company Law Tribunal and Appellate Tribunal Bar Association seeking direction to the Central Government

  • to fill up the vacancies of Chairman, NCLAT and President of NCLT without any further delay.
  • to issue letters of appointment to the candidates pursuant to the Selection procedure initiated in 2019 and to fill up the remaining vacancies of Members of NCLT and NCLAT.
  • to extend the term of six Members of the NCLT and NCLAT for a further period of five years as they are completing the tenure by June, 2021.

The Additional Solicitor General Balbir Singh had told the Court that the process for appointment of candidates who have been selected pursuant to the procedure which was initiated in 2019 shall be expedited and orders of appointment shall be issued soon. In respect of the process to be initiated for filling up the existing vacancies, a search cum Selection Committee has to be constituted. The Court, hence, directed that the Selection Process shall be initiated at the earliest.

On the issue of extension of the term of the Members of the NCLT and NCLAT who are completing their tenure in June, 2021 is concerned, Attorney General KK Venugopal submitted that the government has initiated the process for reappointment by requesting the Chief Justice of India to constitute a committee for the purposes of the reappointment of members to the NCLT and NCLAT.

As per Section 413 of the Company’s Act 2013, the President or other members of the Tribunal shall hold office for a period of 5 years and shall be entitled for reappointment for another term of 5 years.

The petitioner, however, requested that the members who are completing their tenure should be permitted to continue till the process of reappointment is completed.

“… there are 39 members at present for a sanctioned strength of 63 and the depletion of the strength of the members will adversely affect the smooth functioning of the Tribunals.”

The Court, hence, directed the Government to complete the process within two months and said,

“As the Government has already initiated the process of reappointment by writing to the Hon’ble Chief Justice, we trust and hope that the reappointment process should be completed expeditiously, as there is no necessity of issuance of any advertisement for participation of other eligible candidates. Reappointment of members can be considered separately without waiting for the process of fresh appointments to commence.”

[National Company Law Tribunal and Appellate Tribunal Bar Association v. Ministry of Corporate Affairs, 2021 SCC OnLine SC 406, order dated 31.05.2021]


For Petitioner(s) Mr. A.S. Chandhiok, Sr. Adv. Mr. Virender Ganda, Sr. Adv. Mr. Ajay Kumar Jain, Adv Mr. Rakesh Kumar, Adv Mr. Vipul Ganda, Adv Mr. Vishal Ganda, Adv Mr. Satyajit A. Desai, Adv. Mrs. Anagha S Desai, AOR Ms. Aastha Trivedi, Adv Ms. Guresha Bhamra, Adv Mr. Tejasvi Chaudhry, Adv Mr. Satya Kam Sharma, Adv.

For Respondent(s) Mr. KK Venugopal, Ld. AG Mr. Balbir Singh, Ld. ASG Mr. R. Balasubramanium, Sr. Adv. Mr. Zoheb Hossain, Adv Ms. Shradha Deshmukh, Adv. Ms. Chinmayee Chandra, Adv. Mr. Shyam Gopal, Adv. Mr. Ankur Talwar, Adv. Ms. Suhasini Sen, Adv. Mr. Gurmeet Singh Makker, AOR

Case BriefsSupreme Court

Supreme Court: In the case relating to appointment to the post of Post Graduate Assistants in Chemistry departments for the year 2018-2019 in Tamil Nadu, the 3-judge bench of Sanjay Kishan Kaul*, Dinesh Maheshwari and Hrishikesh Roy, JJ was posed with the question as to whether the candidates who secured high marks should have been fitted in the General Turn but have been fitted in Most Backward Class (MBC)/ Denotified Community (DNC) Quota for the last year, which in turn has deprived certain candidates of selection.

The Court held that the increase in MBC/DNC candidates does not impinge on the reservation of seats for other categories, nor does it violate any provision of the Constitution of India. Though, of course, it would imply that some of the other candidates from different reserved categories would not be entitled to fill in the reserved seats of MBC/DNC categories, if those seats would have remained vacant.

The Court, however, clarified that these observations were in the context of the controversy before it as the larger issue of reservation beyond 50%, qua Tamil Nadu, is still pending consideration.

Background

Notification was issued on 12.06.2019 by the Teachers’ Recruitment Board, inviting applications online from eligible candidates for direct recruitment to the post of Post Graduate Assistants and Physical Education Directors, Grade-I in school education and other departments for the year 2018-2019 in Tamil Nadu. The filling up of vacancies for the post of Post Graduate Assistants in Chemistry has caused some disputes in which the respondents were applicants. In terms of the notification, a total of 356 posts were notified for Chemistry, out of which 117 vacancies were available for Most Backward Class (MBC) and Denotified Community (DNC) candidates. The break-up of 117 vacancies was of 74 backlog vacancies and 43 current vacancies.

The respondents, among other candidates, applied for the aforementioned post online and appeared in the written examination on 28.09.2019. Post verification of certificates, a provisional selection list was published on 20.11.2019, but the names of the respondents were absent.

The respondents claimed that on scrutinizing the list, they found that the meritorious candidates under the MBC quota, who would have been selected irrespective of any reservation, had not been considered under the general vacancies but had been appointed in the MBC/DNC quota against the backlog vacancies. This had caused the respondents not to be appointed. It was their case that the meritorious candidates were required to be adjusted against vacancies on merit in the General Turn, and it is only thereafter that the backlog vacancies had to be filled in and thereafter, lastly, the current vacancies under the quota had to be adjusted.

Analysis

The Court agreed with the findings of the single and division bench of the Madras High Court, both and explained that the controversy revolved around the interpretation of Section 27(f) of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016.

The Section propagates the social philosophy of vacancies for reserved category not lapsing in case there are inadequate number of candidates. Thus, instead of offering it to the general category, a provision has been made to carry forward those vacancies for one year. In case even in the succeeding year, these vacancies are not filled in, then it goes to other categories.

The Single Bench explained that the crucial issue arises from the last sentence of third proviso to Section 27(f) which provides for the selection of appointment for the next direct recruitment to be made “first for backlog vacancies and then the normal rotation shall be followed”. Meaning, thus, has to be assigned to what is implied by the expression “first” vis-à-vis the backlog vacancies.

Section 27(f) merely states that if the required number of candidates belonging to the community which fall under reservation are not available, then, the vacancies, for which selection could not be made in the current year, should be treated as backlog vacancies. In the subsequent recruitment, the backlog vacancies and the current vacancies for the particular community must be separately announced, and the direct recruitment must first accommodate the backlog vacancies and thereafter only, the current vacancies have to be accommodated.

“The provision had been read by the appellants as if the backlog vacancies must be filled in by MBC/DNC category candidates, irrespective of the merit of the candidate or the rank secured by him/her. The highest mark that was secured was 109 and, up to 90 marks, the candidates were fitted in General Turn and thus those candidates will have to be selected under the General Turn, irrespective of their community. It is these candidates who had been fitted in the backlog vacancy which has caused the problem.”

The Division Bench vide the impugned order also opined in the same terms and agreed with the interpretation of Section 27 of the Act by further observing that the proviso which contains the word “first” does not have any relation to the offer and placement of such reserved category candidates, including, Most Backward Classes who attain their position by way of merit in the open category/General Turn vacancies.

Agreeing to both the opinions, the Court said,

“The principle that such of the reservation category candidates who make it on their own merit have to be adjusted against the general category candidates has not been in doubt or argued in view of the catena of judgments cited aforesaid. In our view, Section 27(f) of the Act cannot be read in a manner, apart from any other reason, to negate this very principle.”

It explained that Section 27 deals with the reservation. It has nothing to do with the general candidates list/ General Turn vacancies.

“Such of the candidates who have made it on their own merit albeit, from reserved category, have not sought the benefit of the reservation. Thus, Section 27 of the Act would have nothing to do up to that point. Section 27 would apply only when the reservation principle begins, which is after filling up of the seats on merit.”

Thus, the word “first” would apply at that stage, i.e., the backlog vacancies have to be filled in first and the current vacancies to be filled in thereafter. At the stage when the general category seats are being filled, there is thus no question of any carry forward or current vacancies for reserved category arising at all.

The Court, in Saurav Yadav v. State of Uttar Pradesh, 2020 SCC OnLine SC 1034, stated the steps which have to be taken to fill in the vacancies:

(a) the general merit list to be first filled in;

(b) the backlog vacancies of the particular reserved category to be thereafter filled in “first”; and

(c) the remaining reserved vacancies for the current year to be filled thereafter.

Considering this, the Court said that it appears that such a situation may not arise in the future as all backlog vacancies are stated to have been filled in.

“The performance and merit of candidates, as apparent from the list in question, would itself show as to how many candidates have been successful to attain appointment on a merit position without even availing of reservation- an extremely encouraging aspect!”

Hence, it was held that the increase in MBC/DNC candidates really does not impinge on the reservation of seats for other categories, nor does it violate any provision of the Constitution of India.

[State of Tamil Nadu v. K. Shobhna,  2021 SCC OnLine SC 179, decided on 05.03.2021]


*Judgment by: Justice Sanjay Kishan Kaul

Know Thy Judge| Justice Sanjay Kishan Kaul

Appearances before the Court by:

For appellants: Senior Advocate C. Aryama Sundaram

For intervenors: Senior Advocate S. Nagamuthu

For respondent: Senior Advocate N.L. Rajah

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“Open category is open to all”; SC directs appointment of OBC female candidates with higher marks than General Category female candidates as Constables by UP Police

Case BriefsSupreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Kamini Sharma, Editorial Assistant has put this story together 

*Judgment by: Justice Indu Malhotra

Appearances before the Court by

For appellant: Senior Advocate Vinay Navare

For State: Advocate Sachin Patil

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of K. Vinod Chandran and V. G. Arun, JJ., addressed the present petition filed by BSNL against the order of Central Administrative Tribunal.

The Tribunal had upheld the claim of the respondent for consideration of promotion as Sub Divisional Engineer (“SDE”) in 3% disability quota under the Persons with Disabilities Act, 1995; thereby allowed the O.A. while relying on the judgment in Rajeev Kumar Gupta v. Union of India, (2016) 13 SCC 153.

BSNL contended that there was a reference made by another Division Bench of the Supreme Court regarding the judgment relied on the Tribunal. Hence, the order of the Tribunal suffered with flaws.

The Court observed that the reference had now been answered by the Supreme Court in Siddaraju v. State of Karnataka, 2017 SCC OnLine SC 1940, whereby the Larger Bench had affirmed the decision of the Division Bench. Therefore, now from promotions to vacancies, even where there is no direct recruitment, the 3% quota for disabled persons has to be complied with. The Court upheld the order of the Tribunal and directed BSNL to consider the respondent for promotion to the post of SDE on completion of three years as Junior Telecom Officer (“JTO”) w.e.f. 23-07-1996. It was further directed that promotion to the post of Divisional Engineer should also be considered on the expiry of six years from the date of notional promotion as SDE.

Counsel for BSNL, T. Sanjay sought time for the purpose of enabling the organisation to get the details of the disabled persons and consider them according to their seniority to be accommodated in the 3% vacancies on All India basis, contending that now when promotions were to be made on the basis of quota of 3% as prescribed under the Act of 1995, it had become necessary that the other disabled persons, who might be entitled to be considered, also be given an opportunity.

The Court accepted the prayer of BSNL and granted it time of four months. The Court noticed that the respondent had applied for voluntary retirement from the post of Divisional Engineer and if promotions were granted to him notionally from an earlier date, fixation of salary would have to be carried out and increments too had to be granted in the higher scale. It was held that though on such notional revision the respondent would not be entitled to any arrears of pay, the retirement benefits including any ex-gratia amounts paid in lieu of voluntary retirement, should be revised in accordance with that and the arrears if any should be paid as well. [Bharat Sanchar Nigam Ltd. v. M.G Prabhakara Panicker,  2020 SCC OnLine Ker 8664, decided on 23-01-2020]

Case BriefsSupreme Court

Supreme Court: Taking note of the “appalling situation” concerning National Green Tribunal where, as of today, there are about 14 vacancies (seven judicial members and seven technical members), the 3-judge bench of AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna, JJ has directed Centre to notify, within 10 days, all the existing vacancies at one go, including the anticipated vacancies likely to take place in the next six months.

The Court noticed that the Tribunal is presently functioning with the strength of only seven judges i.e. one chairman, three judicial members and three technical members, despite the mandate to ensure that the minimum number of members shall not be less than 10. It said,

“This is an appalling situation concerning the premier institution such as National Green Tribunal, which is required to deal with environmental issues. That cannot be countenanced.”

Centre had, in it’s response, given assurance that notification for filling up nine vacancies is being issued by the end of July, 2020. But the Court said that it was not enough and that a notification for ALL vacancies was needed to be issued.

The Court, further, directed that until the proposed selection process culminates with appointment order(s) of the concerned candidates against the existing vacancies, the members presently in office as on this date but are likely to retire shortly, shall continue to hold office in terms of this order and discharge their functions accordingly.

The Court has asked the Centre to file a compliance report by the next date of hearing i.e. 13.08.2020.

[NGT Bar Association (Western Zone) v. Union of India, 2020 SCC OnLine SC 591 , order dated 23.07.2020]


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Case BriefsSupreme Court

Supreme Court: In the issue relating to filling up of 4010 vacancies in the State of Uttar Pradesh, consisting of 3698 vacancies for Sub-Inspectors and 312 vacancies for Platoon Commanders, the 3-judge bench of Madan B. Lokur, Kurian Joseph and Deepak Gupta, JJ directed that the vacancies should be filled up by the State of Uttar Pradesh expeditiously on merits, if not already filled up.

The State had submitted before the Court that due to orders passed from time to time by this Court, perhaps more than 4010 posts have been filled up. The Court, hence, directed that the persons occupying posts in excess of 4010 shall not be disturbed until further orders from this Court.

Regarding the question as to whether the persons who have been appointed in excess of 4010 Posts are to continue or their services may be dispensed with, the Court said that it will pass the appropriate orders only after hearing the parties.

The Court also took note of it’s order dated 14.09.2017 in which it was noted that all those persons who are before this Court on the ground that they were before the High Court on or before 31st December, 2016 either as petitioners or intervenors may submit their particulars to learned Additional Advocate General who will verify the particulars and submit a report before 31st October, 2017. The Court, hence, made clear that following the order passed on 14.09.2017, all applications for intervention/impleadment, etc. or fresh matters instituted after the cut-off date of 31st December, 2016 stand disposed of. [Alok Kumar Singh v. State of U.P.,  2018 SCC OnLine SC 309, order dated 22.03.2018]