Category Archives: Service Law

KEYWORDS:- appointment and absorption-temporary or badli kamdar- appreciation of evidence under article 136-

Supreme Court cannot appreciate the evidence in the appeals filed under Article 136 of the Constitution. It is more so when the Single Judge and Division Bench did not agree with the factual findings of the Tribunal and rightly reversed those findings. It is binding on the Supreme Court.

DATE:-March 07, 2018

SUPREME COURT OF INDIA

Bhupendra Kumar Chimanbhai Kachiya Patel Vs. Divisional Controller GSRTC Nadiad

WITH[ SEE BELOW]

Abhay Manohar Sapre, J.

1. Leave granted.

2. These appeals are filed against the final judgments and orders passed by the High Court of Gujarat at Ahmedabad dated 28.06.2016 in L.P.A. No.550/2016, dated 22.08.2017 in L.P.A. Nos.1344-1347/2017, dated 04.07.2017 in L.P.A. Nos.1185/2014, 1199, 1252, 1254-1259, 1261, 1264-1278, 1281-1282, 1284, 1286, 1288, 1291-1296, 1298/2014, dated 21.06.2016 in L.P.A. Nos.497-500/2016 and dated 04.07.2017 in L.P.A. Nos.1200, 1287, 1289, 1297 and 1299/2014 whereby the Division Bench of the High Court dismissed the appeals filed by the appellants herein and upheld the orders passed by the Single Judge of the High Court.

3. In order to appreciate the issues involved in these appeals, it is necessary to set out the facts in detail. The facts and the legal issues arising in all these appeals are similar in nature except the date of their initial appointment and absorption, which vary from case to case in the service of the respondent.

4. For the sake of convenience, the facts mentioned in Reference I.T. No.44/2011 (Annexure- 12) of the paper book of SLP Nos. 28519-28522 of 2017 are mentioned hereinbelow.

5. Prafulbhai Hirabhai Solanki, one of the appellants herein, whose name appears at page 18 of the SLP paper book joined the services of the respondent-Gujarat State Road Transport Corporation (hereinafter referred to as “the Corporation) on 04.06.1999 as “Badali Kamdar” at Mangrol Depot of Junagadh Section. He was employed as a daily wager.

6. On 21.12.1989, the Corporation and the Union of the workers entered into a settlement to resolve several issues in relation to the service conditions of the employees working in the Corporation.

7. Clause 20 of the Settlement, which is relevant for the disposal of these appeals, deals with the placement and absorption of the “Badali Kamdar” in the permanent cadre of conductor and grant of time scale to such workers. It provides a procedure as to how, when and in what manner, the services of a “Badali Kamdar” shall be regularized and absorbed in a particular time scale.

8. In terms of clause 20 of the settlement dated 21.12.1989, the Corporation considered the case of the appellant when the vacancy occurred in the permanent cadre on the post of Conductor and accordingly he was absorbed as permanent employee in the services of the Corporation on 27.08.2008 as Conductor. He was given the time scale with effect from 27.08.2008 with consequential benefits.

9. Like the appellant, there were hundreds of “Badali Kamdars” who were working in the set up of Corporation at all relevant time. The cases of these “Badali Kamdars” were also considered with a view to find out as to whether they fulfill the conditions set out in clause 20 for making them permanent in the set up of the Corporation as and when permanent vacancy arose in the cadre of the Conductor. Those who were found eligible and fulfilled the conditions were absorbed in the services as permanent employees on the post of conductor and were accordingly given the time scale on the expiry of completion of 180 days in the cadre. They were accordingly made permanent in terms of the procedure prescribed in clause 20 of the Settlement.

10. This led to dispute between these employees and the Corporation. The dispute was essentially as to from which date this benefit, namely, to make them permanent and the benefit of time scale should be granted to such “Badali Kamdars”.

11. According to the employee (appellant), he was entitled to claim this benefit on his completing 180 days of the service from the date of his initial joining of the service as “Badali Kamdar”, i.e., 04.06.1999 and not from the date of absorption whereas according to the Corporation, the appellant and all employees alike the appellant were rightly granted the benefit on the expiry of 180 days from the date when they were absorbed in the permanent cadre, i.e., as in the case of the appellant from 27.08.2008 as provided in clause 20 of the Settlement.

12. This issue was accordingly referred to the Industrial Tribunal, Rajkot at the instance of the appellant under Section 10 of the Industrial Dispute Act (hereinafter referred to as “the Act”). Several such references were made to the Industrial Tribunal at the instance of similarly situated employees.

13. By award dated 08.08.2013 (Annexure-P-12), the Industrial Tribunal answered the reference in favour of the employees and accordingly granted them benefit, which the employees had claimed. In other words, the Industrial Tribunal held that the appellant (employee) is entitled to claim the permanent absorption in his service in the time scale as Conductor with effect from the completion 9 of his 180 days of service period from the date of his initial joining, i.e., 04.06.1999. The Corporation was accordingly asked to pay all consequential benefits from such date. In substance, the Industrial Tribunal rejected the stand taken by the Corporation.

14. The Corporation felt aggrieved and filed writ petition in the High Court of Gujarat at Ahmadabad. The Single Judge of the High Court, by order dated 18.09.2014, allowed the writ petition and set aside the award of the Industrial Tribunal. The Single Judge accepted the stand taken by the Corporation and accordingly upheld their action in granting the benefit to the employee (appellant) from 27.08.2008 as provided in clause 20 of the Settlement.

15. The appellants (employees) felt aggrieved and filed intra court appeals before the Division Bench. By impugned judgments and orders, the Division Bench dismissed the appeals filed by the employees and upheld the orders of the Single Judge, which has given rise to filing of these appeals by way of special leave by the employees in this Court.

16. Heard Mr. Colin Gonsalves, learned senior counsel for the appellants and Mr. Tushar Mehta, learned Additional Solicitor General for the respondent.

17. Mr. Colin Gonsalves learned senior counsel appearing for the appellants(employees) while assailing the legality and correctness of the impugned orders contended that the reasoning and the conclusion arrived at by the Industrial Tribunal was just, proper and legal and hence it should not have been interfered with by the High Court (Single Judge and Division Bench).

18. Learned counsel urged that the findings of the Industrial Tribunal were based on proper appreciation of evidence adduced by the parties and hence such findings could not be faulted with. Learned counsel took us through the evidence to show that the findings recorded by the Industrial Tribunal deserve to be upheld as against the findings of Single Judge and Division Bench.

19. Learned counsel placed reliance on some judicial orders passed in previous litigation between the Corporation and its employees which, according to him, decided the issue in question in favour of the employees.

20. Learned senior counsel for the appellants submitted that in the light of these judicial orders, the similar order should be passed in these appeals also.

21. In reply, Mr. Tushar Mehta, learned Additional Solicitor General, appearing for the respondent supported the impugned judgment and contended that the concurrent findings of the High Court (Single Judge and Division Bench) deserve to be upheld.

22. Placing reliance on clause 20 of the settlement, learned ASG contended that the action taken by the Corporation is in conformity with the requirements of Clause 20 and hence deserves to be upheld.

23. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeals.

24. As rightly argued by the learned ASG, the issue in question has to be decided in the light of clause 20 of the Settlement.

25. One cannot dispute the legal proposition that the settlement once arrived at between the employer and the employees as provided in Section 18 of the Act, it is binding on the employer and the employees.

26. It is not in dispute that on 21.12.1989, the Corporation and the Union of the workers of the Corporation has entered into the settlement in respect of various issues in relation to their service conditions. One such issue was in relation to the absorption of Badali Kamdars in the permanent cadre of the Corporation. Clause 20 provides the manner in which it is to be given effect to by the parties.

27. Clause 20 of the Settlement dated 21.12.1989 reads as under:

“In reference to the representation made to delete the provision of the section 29 of the settlement dated 23/11/1984 and implement the provision of section 43 of the settlement dated 22/10/1964 it is determined that after preparing the Division wise list of the selected employees they will be given temporary/daily wager appointment against the permanent posts in the division/unit, and if such appointed temporary/daily wager has worked continuously for 180 days including the weekly holiday/paid holiday and authorize leave then they will be taken on time scale.

This provision will not be applicable to the employees on work charge working in the Civil Engineering Department and such appointed temporary/daily wager has worked continuously for 180 days including the weekly holiday/paid holiday and authorized leave then they will be taken in time scale and they will be entitled to all benefits available to time scale employees.

The absence due to authorized leave for the above purpose will not be considered break and these days will not be considered for 180 days service. As per permission of S.T.T. 1981, if the recruitment of the staff has been done as a temporary or badli kamdar then after completion of their 180 days of service on the permitted vacancies they would be taken on time scale serially. Such workers will be granted all benefits as per the Rules along with the notional increment with effect from 1.8.87 and there will not be any recoveries made from them nor there will be any arrears paid. The workmen taken into service are not required during the monsoon, therefore they can be retrenched as per the requirement and after the monsoon if their services are required then again as per seniority they will be taken in time scale. If there is any permanent post vacant then the appointment of the administrative staff will be made on time scale.”

28. It is not in dispute that the Corporation has followed the procedure provided in clause 20 while granting the employees their permanent cadre and the time scale of conductor. In other words, all eligible “Badali Kamdars” were absorbed in the set up and accordingly granted benefit in terms of the procedure prescribed in clause 20 of the Settlement.

29. It is also clear from the undisputed facts that firstly, the appellant (employee concerned) was appointed as “Badali Kamdar” in the set up of Corporation on 04.06.1999; Secondly, clear vacancy 16 arose in the permanent cadre of Conductor in and around 27.08.2008; Thirdly, as per the seniority list of the “Badali Kamdars”, the appellant was accordingly absorbed in the permanent cadre at the time scale with effect from 27.08.2008 on completion of 180 days of his service in the cadre and, as a consequence thereof, was given all the benefits of the said post from the said date; and lastly, since then the appellant and all employees alike him are continuing on their respective post.

30. In our considered opinion, in the light of what we have held above, there is no basis for the appellants (employees) to claim the aforesaid benefit from the date of their initial appointment as “Badali Kamdar”. Indeed, there is neither any factual foundation nor any legal foundation to claim such benefit.

31. Learned counsel for the appellants was also not able to show any document, such as any term/condition in the appointment letter or in the settlement or any Rule/Regulation framed by the Corporation recognizing such right in appellants’ favour to enable them to claim such benefit from the date of their initial appointment.

32. Clause 20 of the Settlement is the only clause which recognizes the appellant’s right for consideration of his case on individual basis and to grant him the benefit subject to his fulfilling conditions specified therein which, in appellant’s case, were found satisfied and accordingly, he was granted the benefit along with each such employees.

33. It is pertinent to mention that the appellants neither challenged the settlement nor its applicability. In other words, the legality or/and 18 binding nature of settlement dated 21.12.1989 was never questioned in these proceedings. In this view of the matter, the settlement is binding on both parties in terms of Section 18 of the Act.

34. The concept of “Badli Kamdar” is statutorily recognized under the Act. Explanation to Section 25C defines the term “Badli Kamdar”. The appellant never questioned his status as “Badli Kamdar”. Indeed, it is due to the status of “Badli Kamdar”, which he enjoyed for few years in the service of Corporation, he got the benefit of absorption in permanent cadre.

35. So far as the reliance placed by the learned counsel for the appellants on some previous judicial orders are concerned, in our view, they are of no help to the appellants inasmuch as those orders turned on the facts involved in the case and 19 secondly, we find that in those cases, parties did not even lead any evidence (see Para-3 of the order dated 27.01.2000 passed in SCA No. 393/2000 page 45 of Paper Book), and lastly, one case was based on clause 49 of 1956 settlement and clause 19 of 1985 settlement.

36. In substance, in our view, those orders did not directly deal with the issues, which are the subject matter of these appeals and, even if, they deal with the issue in question, as urged by the learned counsel, then also, in our view, those cases turned on their own facts.

37. In this view of the matter, those orders were rightly not relied on by the High Court and we find no good ground to take different view and accordingly reject this submission.

38. Mr. Colin Gondsalves, learned senior counsel for the appellants then referred extensively to the evidence led by the parties to support his submission.

39. We are afraid we cannot appreciate the evidence in the appeals filed under Article 136 of the Constitution. It is more so when the Single Judge and Division Bench did not agree with the factual findings of the Tribunal and rightly reversed those findings. It is binding on this Court.

40. In the light of the foregoing discussion, we find no merit in the appeals which thus fail and are accordingly dismissed.

J. [R.K. AGRAWAL]

J. [ABHAY MANOHAR SAPRE]

New Delhi;

March 07, 2018

___________________

[Civil Appeal No.2546 of 2018 Arising out of S.L.P. (C) No.6105 of 2018) (D.No.35250 of 2017]

Prakashbhai Ishwarlal Dave Vs. Divisional Controller GSRTC Junagarh

[Civil Appeal Nos.2594-2598 of 2018 arising out of S.L.P. (C) Nos. 28519-28522 of 2017]

Ghanshyam Pratapsinh Parmar Vs. Divisional Controller GSRTC Rajkot

[Civil Appeal No. 2556-2592 of 2018 arising out of S.L.P.(C) Nos.6115-6151 of 2018) (D. No.30838 of 2017]

Pradhyumansinh Lakhuba Jadeja Vs. Divisional Controller GSRTC

[Civil Appeal No.2547-2555 of 2018 arising out of S.L.P. (C) No. 6106-6114 of 2018) (D. No.30615 of 2017]

CIVIL, Service Law

Sunita Singh Vs. State of Uttar Pradesh and others [SC 2018 January ]

22 Jan 2018 Advocatetanmoy

KEYWORDS:- Termination from service- Caste certificate-

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DATE:- JANUARY 19, 2018-

The caste is determined by birth and the caste cannot be changed by marriage with a person of scheduled caste.
However, having regard to the fact that the appellant has already served as a Teacher and Vice-Principal of Kendriya Vidyalaya without any black spot in her service career for about 21 years, and that she is going to retire shortly, we take lenient view by exercising jurisdiction under Article 142 of the Constitution of India and order to convert the order of termination to an order of compulsory retirement. While exercising leniency, we have also kept in mind that the appellant has neither played fraud nor misrepresented before any of the authorities for getting the caste certificate and while continuing in service based on the caste certificate.

SUPREME COURT OF INDIA

Sunita Singh Vs. State of Uttar Pradesh and others

[Civil Appeal No. 487 of 2018 arising from SLP(C) No.7181 of 2016]

MOHAN M. SHANTANAGOUDAR, J.

1. Leave granted.

2. Judgment dated 21.12.2015 passed by the High Court of Judicature at Allahabad in Writ-C No. 53689 of 2015, dismissing the writ petition filed by the appellant and confirming the order of termination from service passed against the appellant, is called in question in this appeal.

3. Appellant was born in “Agarwal” family. She married Dr. Veer Singh, who happens to belong to “Jatav” Community (said to be one of the Scheduled Castes). A caste certificate dated 29.11.1991 was issued by District Magistrate/Collector, Bulandshahar certifying the appellant as of Scheduled Caste (Jatav). Based on the academic qualifications and the caste certificate, she was appointed initially as a Post Graduate Teacher (Hindi) vide letter dated 16.12.1993 at Kendriya Vidyalaya No.1, Pathankot, Punjab. During the course of her service, she completed her M.Ed and served the institution for about 21 years as teacher.

4. A complaint was lodged against the appellant to the effect that she was born in “Agarwal” family (general caste category) and after her marriage with a person of scheduled caste, she obtained a caste certificate in question. After making preliminary verification, the jurisdictional officer directed to conduct an enquiry in respect of the caste certificate of the appellant.

The Tehsildar vide his order dated 22/27.6.2013 cancelled the caste certificate of the appellant and asked the appellant to return the caste certificate issued earlier to the appellant. City Magistrate, Bulandshahar vide letter dated 18.07.2013 communicated to the Deputy Commissioner, Kendriya Vidyalaya Sangathan that the caste certificate issued to the appellant treating her as “Jatav” has been cancelled. Subsequently, the appellant made a representation to District Magistrate, Bulandshahar on 6.1.2014 requesting him to reconsider the matter and the said representation came to be dismissed on 3.9.2014 by District Magistrate, Bulandshahar.

The appeal filed by the appellant against the order of the Tehsildar cancelling her caste certificate and the order of the District Magistrate dismissing her representation was also dismissed by the appellate authority i.e., Commissioner, Meerut Division, Meerut on 27.12.2014. As a result of cancellation of the caste certificate, an order was passed by the Kendriya Vidyalaya Sangathan on 18.03.2015 terminating the appellant from the services of Kendriya Vidyalaya Sangathan.

The appeal filed by the appellant before the State Level Committee against the order of the appellate authority cancelling her caste certificate also came to be dismissed on 15.05.2015. The appellant’s further efforts of approaching the High Court by filing the writ petition also failed, inasmuch as the High Court dismissed the writ petition by the impugned judgment.

Hence, this appeal.

5. There cannot be any dispute that the caste is determined by birth and the caste cannot be changed by marriage with a person of scheduled caste. Undoubtedly, the appellant was born in “Agarwal” family, which falls in general category and not in scheduled caste. Merely because her husband is belonging to a scheduled caste category, the appellant should not have been issued with a caste certificate showing her caste as scheduled caste. In that regard, the orders of the authorities as well as the judgment of the High Court cannot be faulted.

However, having regard to the fact that the appellant has already served as a Teacher and Vice-Principal of Kendriya Vidyalaya without any black spot in her service career for about 21 years, and that she is going to retire shortly, we take lenient view by exercising jurisdiction under Article 142 of the Constitution of India and order to convert the order of termination to an order of compulsory retirement. While exercising leniency, we have also kept in mind that the appellant has neither played fraud nor misrepresented before any of the authorities for getting the caste certificate and while continuing in service based on the caste certificate.

No questions were raised against her till the complaint in question came to be lodged, even when the authorities had seen the High School Certificate, Marks Sheet etc. showing her caste as Agarwal at the initial stage. Having regard to the totality of the facts of the case, the impugned judgment of the High Court is modified. “The order of termination from service” passed against the appellant shall be treated as “the order of compulsory retirement”. However, we make it clear that this shall not be treated as a precedent in future.

6. The appeal stands disposed of in the aforesaid terms.

No order as to costs.

[ARUN MISHRA]

[MOHAN M. SHANTANAGOUDAR]

NEW DELHI;

JANUARY 19, 2018.

CIVIL, Service Law

The Correspondent, Schaffter Higher Secondary School, Tirunelveli and Ors. Etc. Vs. A.M. Sankey John and ANR. Etc[SC 2017 DECEMBER]

5 Jan 2018 Advocatetanmoy

KEYWORDS:-violation of the principles of natural justice-

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DATE: December 11, 2017-

SUPREME COURT OF INDIA

The Correspondent, Schaffter Higher Secondary School, Tirunelveli and Ors. Etc. Vs. A.M. Sankey John and ANR. Etc.

[Civil Appeal Nos. 10506-10510 of 2011]

KURIAN, J.

1. The appellants are before this Court, aggrieved by the Judgment and order dated 26.03.2010 passed by the Madurai Bench of the High Court of Judicature at Madras in W.A.(MD) Nos. 253, 254, 375, 376 and 377 of 2009. The Division Bench entered a finding that the termination of the private respondents was bad in law being in violation of the principles of natural justice.

2. During the pendency of the appeals before us, pursuant to our specific order dated 23.11.2017, the District Education Officer, Tirunelveli, has passed an order dated 04.12.2017 holding that the appointing authority was not competent to appoint the private respondents and hence, no approval can be granted in the case of those appointments.

Though, no separate orders are passed in the case of the two remaining private respondents, we take it that same is the stand taken by the District Education Officer and the same is their fate as well. Since there were several questions regarding the right to appointment, promotion, approval etc. before the High Court and since the High Court has finally limited the consideration to only the principles of natural justice, we are of the view that the matter, in view of the intervening developments of the District Education Officer rejecting the approval, needs to be sent back to the High Court. In order to avoid another round of litigation, we grant liberty to the private respondents to challenge the validity of the order dated 04.12.2017 passed by the District Education Officer, Tirunelveli, in the pending writ appeal(s).

3. The learned counsel appearing for the State submits that the fate of the two other persons namely, S. Arun Arockiaraj and Suganthi Selvakumari, is also the same as in the order dated 04.12.2017. Therefore, we make it clear that in their cases also, the order dated 04.12.2017 shall be treated as an order rejecting their approval as well and hence, it will be open to those two teachers also to amend their pleadings in the writ appeal(s) before the High Court. Accordingly, these appeals are disposed of setting aside the impugned Judgment and remanding the matter back to the High Court for consideration afresh. It will be open to both the sides to take all available contentions before the High Court. We request the High Court to go into the validity of the order dated 04.12.2017 passed by the District Education Officer.

4. Being an old matter, we request the High Court to dispose of the writ appeal(s) expeditiously and preferably before the end of this academic year. Needless to say, the question as to who is the competent authority will also be gone into by the High Court.

[KURIAN JOSEPH]

[A.M. KHANWILKAR]

New Delhi;

December 11, 2017

CIVIL, Service Law

Ran Vijay Singh & Ors. Vs. State of Uttar Pradesh & Ors [SC 2017 DECEMBER]

27 Dec 2017 Advocatetanmoy

KEYWORDS:- Education Services Selection Board – Trained Graduate Teachers – Evaluation of answer sheet-

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December 11, 2017

DIRECTION ISSUED ON EVALUATION OF ANSWER SHEET
A judge might have a difference of opinion with another judge, but that does not give him or her any right to ignore the contrary view. In the event of a difference of opinion, the procedure sanctified by time must be adhered to so that there is demonstrated respect for the rule of law.

ACTS :- Uttar Pradesh Secondary Education Services Selection Board Act, 1982

Ran Vijay Singh & Ors. Vs. State of Uttar Pradesh & Ors.

[Civil Appeal No. 367 of 2017]

[Civil Appeal Nos. 355, 354, 356-357, 358 and 366 of 2017]

Madan B. Lokur, J

1. What a mess! This is perhaps the only way to describe the events that have transpired in the examination conducted by the U.P. Secondary Education Services Selection Board. We have reached the present stage of judgment after eight long years of uncertainty for, and three evaluations of the answer sheets of, more than 36,000 candidates who took the examination for recruitment as Trained Graduate Teachers way back in January 2009. Hopefully today, their travails, as those of the U.P. Secondary Education Services Selection Board, will come to a satisfactory end.

2. On 15th January, 2009 the U.P. Secondary Education Services Selection Board (for short the “Board”) published an advertisement inviting applications for recruitment to the post of Trained Graduate Teachers in Social Science. The recruitment was to be in accordance with the provisions of the U.P. Secondary Education Services Selection Board Act, 1982 and the Rules framed thereunder.

3. More than 36,000 candidates took the written examination held pursuant to the advertisement and the result of the written examination was declared by the Board on 18th June, 2010. It may be mentioned that the written examination was based on multiple choice answers which were to be scanned on OMR sheets.

4. The candidates who qualified in the written examination were called for an interview held between 16th and 26th July, 2010. Eventually, the combined result (written examination and interview) was declared on 14th September, 2010. According to the appellants, they were successful in the written examination as well as in the interview and were amongst those who were in the select list for recruitment.

5. Some candidates who were not successful in the written examination or in the interview filed writ petitions in the Allahabad High Court between 2010 and 2011. All these writ petitions were dismissed by a learned Single Judge. The reasons for dismissal of these writ petitions were that there was no provision for re-evaluation of the answer sheets in the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 or the Rules framed thereunder. Reliance was also placed by the learned Single Judge for dismissing writ petitions on the decision of this Court in Himachal Pradesh Public Service Commission v. Mukesh Thakur1 in which this Court considered a large number of its earlier decisions and held: “Thus, the law on the subject emerges to the effect that in the absence of any provision under the statute or statutory rules/regulations, the Court should not generally direct revaluation.”

6. Another batch of writ petitions (having writ petitioners) came to be listed before another learned Single Judge of the High Court. The subject and issues were the same and the learned Single Judge admitted these writ petitions for final hearing notwithstanding the dismissal of several similar petitions. The challenge made by the writ petitioners was to seven questions/answers in the written examination which, according to them, had incorrect key answers. The learned Single Judge personally examined those seven questions and concluded that:

(a) The correct answer of question no. 24 in History paper would be option (1).

(b) For question no. 25, History paper, option (2) is correct.

(d) Option (2) is correct answer in respect to question no. 37 of History paper.

(e) Question no. 40 of History paper is wrongly framed.

(f) In question no. 43, there may be two correct answers, i.e. options (1) and (3).

(g) In question no.32 of Civics Paper, option (3) would be the correct answer.

The learned Single Judge then proceeded to observe: “It cannot be doubted that being a selection body for appointment of Teachers in Secondary Schools, the Selection Board was under a pious as well as statutory obligation to hold selection very carefully, meticulously and in the most honest and correct manner. The job of Selection Board could not have been completed by mere holding a selection without caring whether examination is being conducted correctly and properly, whether all the questions have been framed in a proper manner, whether the answer(s), if it is multiple choice examination, have been given with due care and caution so as to leave no scope of error or mistake therein etc.

In fact if such a mistake is committed, it causes a multi-edged injury to an otherwise studious, intelligent and well conversant student who understand the subject, well knows the relevant details and correct answers but suffers due to sheer negligence of the examining body. The obligation of examining body cannot be allowed to whittle out in any manner for any reason whatsoever. For the fault of examining body, a candidate cannot be made to suffer.”

7. On this basis, the learned Single Judge passed a judgment and order dated 8th February, 2012 directing re-examination of the answer sheets of these 77 writ petitioners. It was further directed that in case these writ petitioners are selected then those at the bottom of the select list would automatically have to be pushed out.

8. In must be recorded that the learned Single Judge did refer to and cite several decisions of this Court on the subject or re-evaluation but unfortunately did not appreciate the law laid down. The learned Single Judge relied on Manish Ujwal v. Maharishi Dayanand Saraswati University2 but failed to appreciate that the six disputed answers under consideration in that case were demonstrably wrong and this was not in dispute and even the learned counsel appearing for the University did not question this fact. The decision is clearly distinguishable on facts.

9. Be that as it may, the issue that remained in Manish Ujwal was of the appropriate orders to be passed. While considering this, the following cautionary measures were suggested: “….it is necessary to note that the University and those who prepare the key answers have to be very careful and abundant caution is necessary in these matters for more than one reason. We mention few of those; first and paramount reason being the welfare of the student as a wrong key answer can result in the merit being made a casualty. One can well understand the predicament of a young student at the threshold of his or her career if despite giving correct answer, the student suffers as a result of wrong and demonstrably erroneous key answers; the second reason is that the courts are slow in interfering in educational matters which, in turn, casts a higher responsibility on the University while preparing the key answers; and thirdly, in cases of doubt, the benefit goes in favour of the University and not in favour of the students.”

10. Feeling aggrieved by the decision of the learned Single Judge, the Board preferred Special Appeal No. 442 of 2012 before the Division Bench of the High Court. Some candidates also preferred Special Appeals directed against the judgment and order dated 8th February, 2012. The Special Appeal filed by the Board was dismissed by a Division Bench of the High Court on 13th March, 2012. In some other Special Appeal filed by a candidate, it was stated by the Board on 11th April, 2012 that the answer sheets of all the candidates would be re-evaluated in the light of the judgment of the learned Single Judge.

11. Following up on this, the judgment and order passed by the learned Single Judge was implemented on 10th September, 2012 and the re-evaluated results of the written examination of all candidates were declared. As a result of the re-evaluation, it appears that some candidates, who were declared successful in the combined result declared on 14th September, 2010 were now declared unsuccessful. The appellants before us were not affected by the re-evaluation of the written examination and continued in the select list.

12. Thereafter, a set of petitions was filed including some before this Court and eventually it came to pass that those aggrieved by the order passed by the Division Bench on 13th March, 2012 could file review petitions.

13. On 12th May, 2014 the Board published the final select list of candidates who had qualified in the written examination as well as in the interview. In this final select list, the appellants did not find a place and, therefore, they challenged the order of the learned Single Judge dated 8th February, 2012. According to the appellants the learned Single Judge had incorrectly re-evaluated the seven disputed questions and had arrived at incorrect answers to these questions.

14. The Division Bench heard all the review petitions as well as the appeals and passed an order dated 28th April, 2015 referring the seven disputed questions/answers for consideration by a one-man Expert Committee. On or about 18th May, 2015 the Expert Committee gave its Report to which the appellants filed objections. Eventually, by the judgment and order dated 2nd November, 2015 the Division Bench directed a fresh evaluation of the answer sheets on the basis of the Report of the Expert Committee. This decision of the Division Bench is under challenge before us.

15. During the pendency of the appeals in this Court, the third re-evaluation was completed by the Board. The result of the third re-evaluation has been kept in a sealed cover. The sealed cover was initially filed before us but later returned to learned counsel for the Board.

16. We are pained that an examination for recruitment of Trained Graduate Teachers advertised in January, 2009 has still not attained finality even after the passage of more than eight years. The system of holding public examinations needs to be carefully scrutinised and reviewed so that selected candidates are not drawn into litigation which could go on for several years. Be that as it may, we have still to tackle the issues before us.

17. It was submitted by learned counsel for the appellants that the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 and the Rules framed thereunder do not provide for any re-evaluation of the answer sheets and, therefore, the learned Single Judge ought not to have undertaken that exercise at all. Reference was made to the following passage from Mukesh Thakur which considered several decisions on the subject and held: “In view of the above, it was not permissible for the High Court to examine the question papers and answer sheets itself, particularly, when the Commission had assessed the inter se merit of the candidates.

If there was a discrepancy in framing the question or evaluation of the answer, it could be for all the candidates appearing for the examination and not for Respondent 1 only. It is a matter of chance that the High Court was examining the answer sheets relating to Law. Had it been other subjects like Physics, Chemistry and Mathematics, we are unable to understand as to whether such a course could have been adopted by the High Court. Therefore, we are of the considered opinion that such a course was not permissible to the High Court.”

18. A complete hands-off or no-interference approach was neither suggested in Mukesh Thakur nor has it been suggested in any other decision of this Court – the case law developed over the years admits of interference in the results of an examination but in rare and exceptional situations and to a very limited extent.

19. In Kanpur University v. Samir Gupta3 this Court took the view that “…. the key answer should be assumed to be correct unless it is proved to be wrong and that it should not be held to be wrong by an inferential process of reasoning or by a process of rationalisation. It must be clearly demonstrated to be wrong, that is to say, it must be such as no reasonable body of men well-versed in the particular subject would regard as correct.”

In other words, the onus is on the candidate to clearly demonstrate that the key answer is incorrect and that too without any inferential process or reasoning. The burden on the candidate is therefore rather heavy and the constitutional courts must be extremely cautious in entertaining a plea challenging the correctness of a key answer. To prevent such challenges, this Court recommended a few steps to be taken by the examination authorities and among them are:

(i) Establishing a system of moderation;

(ii) Avoid any ambiguity in the questions, including those that might be caused by translation; and

(iii) Prompt decision be taken to exclude the suspect question and no marks be assigned to it.

20. Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth4 is perhaps the leading case on the subject and concerned itself with Regulation 104 of the Maharashtra Secondary and Higher Secondary Education Boards Regulations, 1977 which reads: “104. Verification of marks obtained by a candidate in a subject.-

(1) Any candidate who has appeared at the Higher Secondary Certificate examination may apply to the Divisional Secretary for verification of marks in any particular subject. The verification will be restricted to checking whether all the answers have been examined and that there has been no mistake in the totalling of marks for each question in that subject and transferring marks correctly on the first cover page of the answer book and whether the supplements attached to the answer book mentioned by the candidate are intact. No revaluation of the answer book or supplements shall be done.

(2) Such an application must be made by the candidate through the head of the junior college which presented him for the examination, within two weeks of the declaration of the examination results and must be accompanied by a fee of Rs 10 for each subject. (3) No candidate shall claim, or be entitled to revaluation of his answers or disclosure or inspection of the answer books or other documents as these are treated by the Divisional Board as most confidential.”

21. The question before this Court was: Whether, under law, a candidate has a right to demand an inspection, verification and revaluation of answer books and whether the statutory regulations framed by the Maharashtra State Board of Secondary and Higher Secondary Education governing the subject insofar as they categorically state that there shall be no such right can be said to be ultra vires, unreasonable and void.

22. This Court noted that the Bombay High Court, while dealing with a batch of 39 writ petitions, divided them into two groups:

(i) Cases where a right of inspection of the answer sheets was claimed;

(ii) Cases where a right of inspection and re-evaluation of answer sheets was claimed.

With regard to the first group, the High Court held the above Regulation 104(3) as unreasonable and void and directed the concerned Board to allow inspection of the answer sheets. With regard to the second group of cases, it was held that the above Regulation 104(1) was void, illegal and manifestly unreasonable and therefore directed that the facility of re-evaluation should be allowed to those examinees who had applied for it.

23. In appeal against the decision of the High Court, it was held by this Court that the principles of natural justice are not applicable in such cases. It was held that: “The principles of natural justice cannot be extended beyond reasonable and rational limits and cannot be carried to such absurd lengths as to make it necessary that candidates who have taken a public examination should be allowed to participate in the process of evaluation of their performances or to verify the correctness of the evaluation made by the examiners by themselves conducting an inspection of the answer books and determining whether there has been a proper and fair valuation of the answers by the examiners.”

24. On the validity of the Regulations, this Court held that they were not illegal or unreasonable or ultra vires the rule making power conferred by statute. It was then said: of “The Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the subordinate regulation-making body. It may be a wise policy which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down on the ground that, in its opinion, it is not a wise or prudent policy, but is even a foolish one, and that it will not really serve to effectuate the purposes of the Act.

The Legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters covered by the Act and there is no scope for interference by the Court unless the particular provision impugned before it can be said to suffer from any legal infirmity, in the sense of its being wholly beyond the scope of the regulation-making power or its being inconsistent with any of the provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution. None of these vitiating factors are shown to exist in the present case…..”.

It was also noted by this Court that: “..the High Court has ignored the cardinal principle that it is not within the legitimate domain of the Court to determine whether the purpose of a statute can be served better by adopting any policy different from what has been laid down by the Legislature or its delegate and to strike down as unreasonable a bye-law (assuming for the purpose of discussion that the impugned regulation is a bye-law) merely on the ground that the policy enunciated therein does not meet with the approval of the Court in regard to its efficaciousness for implementation of the object and purposes of the Act.”

25. Upholding the validity of Regulation 104, this Court then proceeded on the basis of the plain and simple language of the Regulation to hold that “The right of verification conferred by clause (1) is subject to the limitation contained in the same clause that no revaluation of the answer books or supplements shall be done and the further restriction imposed by clause (3), prohibiting disclosure or inspection of the answer books.”

This Court then concluded the discussion by observing: “As has been repeatedly pointed out by this Court, the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them.

It will be wholly wrong for the Court to make a pedantic and purely idealistic approach to the problems of this nature, isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision, rule or bye-law which would bring about the result of rendering the system unworkable in practice. It is unfortunate that this principle has not been adequately kept in mind by the High Court while deciding the instant case.”

26. In Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission the question under consideration was whether the High Court was right in directing re-evaluation of the answer book of a candidate in the absence of any provision entitling the candidate to ask for re-evaluation. This Court noted that there was no provision in the concerned Rules for re-evaluation but only a provision for scrutiny of the answer book “wherein the answer-books are seen for the purpose of checking whether all the answers given by a candidate have been examined and whether there has been any mistake in the totalling of marks of each question and noting them correctly on the first cover page of the answer-book.” This Court reiterated the conclusion in Paritosh Bhupeshkumar Sheth that “in the absence of a specific provision conferring a right upon an examinee to have his answer-books re-evaluated, no such direction can be issued.”

27. The principle laid down by this Court in Paritosh Bhupeshkumar Sheth was affirmed in Secy., W.B. Council of Higher Secondary Education v. Ayan Das and it was reiterated that there must be finality attached to the result of a public examination and in the absence of a statutory provision re-evaluation of answer scripts cannot be permitted and that it could be done only in exceptional cases and as a rarity. Reference was also made to Pramod Kumar Srivastava v. Chairman, Bihar Public Service Commission, Board of Secondary Education v. Pravas Ranjan Panda7 and President, Board of Secondary Education v. D. Suvankar8.

28. The facts in Central Board of Secondary Education v. Khushboo Shrivastava9 are rather interesting. The respondent was a candidate in the All India Pre-Medical/Pre-Dental Entrance Examination, 2007 conducted by the Central Board of Secondary Education (for short “the CBSE”). Soon after the results of the examination were declared, she applied for re-evaluation of her answer sheets. The CBSE declined her request since there was no provision for this. She then filed a writ petition in the Patna High Court and the learned Single Judge called for her answer sheets and on a perusal thereof and on comparing her answers with the model or key answers concluded that she deserved an additional two marks. The view of the learned Single Judge was upheld by the Division Bench of the High Court.

29. In appeal, this Court set aside the decision of the High Court and reiterating the view already expressed by this Court from time to time and allowing the appeal of the CBSE it was held: “We find that a three-Judge Bench of this Court in Pramod Kumar Srivastava v. Bihar Public Service Commission has clearly held relying on Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth that in the absence of any provision for the re-evaluation of answer books in the relevant rules, no candidate in an examination has any right to claim or ask for re-evaluation of his marks.

The decision in Pramod Kumar Srivastava v. Bihar Public Service Commission was followed by another three-Judge Bench of this Court in Board of Secondary Education v. Pravas Ranjan Panda in which the direction of the High Court for re-evaluation of answer books of all the examinees securing 90% or above marks was held to be unsustainable in law because the regulations of the Board of Secondary Education, Orissa, which conducted the examination, did not make any provision for re-evaluation of answer books in the rules. In the present case, the bye-laws of the All India Pre-Medical/Pre-Dental Entrance Examination, 2007 conducted by the CBSE did not provide for re-examination or re-evaluation of answer sheets.

Hence, the appellants could not have allowed such re-examination or re-evaluation on the representation of Respondent 1 and accordingly rejected the representation of Respondent 1 for re-examination/re-evaluation of her answer sheets…… In our considered opinion, neither the learned Single Judge nor the Division Bench of the High Court could have substituted his/its own views for that of the examiners and awarded two additional marks to Respondent 1 for the two answers in exercise of powers of judicial review under Article 226 of the Constitution as these are purely academic matters. …..”

30. The law on the subject is, therefore quite clear and we only propose to highlight a few significant conclusions.

They are:

(i) If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it;

(ii) If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the Court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any “inferential process of reasoning or by a process of rationalisation” and only in rare or exceptional cases that a material error has been committed;

(iii) The Court should not at all re-evaluate or scrutinize the answer sheets of a candidate – it has no expertise in the matter and academic matters are best left to academics;

(iv) The Court should presume the correctness of the key answers and proceed on that assumption; and

(v) In the event of a doubt, the benefit should go to the examination authority rather than to the candidate.

31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse – exclude the suspect or offending question.

32. It is rather unfortunate that despite several decisions of this Court, some of which have been discussed above, there is interference by the Courts in the result of examinations. This places the examination authorities in an unenviable position where they are under scrutiny and not the candidates. Additionally, a massive and sometimes prolonged examination exercise concludes with an air of uncertainty.

While there is no doubt that candidates put in a tremendous effort in preparing for an examination, it must not be forgotten that even the examination authorities put in equally great efforts to successfully conduct an examination. The enormity of the task might reveal some lapse at a later stage, but the Court must consider the internal checks and balances put in place by the examination authorities before interfering with the efforts put in by the candidates who have successfully participated in the examination and the examination authorities.

The present appeals are a classic example of the consequence of such interference where there is no finality to the result of the examinations even after a lapse of eight years. Apart from the examination authorities even the candidates are left wondering about the certainty or otherwise of the result of the examination – whether they have passed or not; whether their result will be approved or disapproved by the Court; whether they will get admission in a college or University or not; and whether they will get recruited or not. This unsatisfactory situation does not work to anybody’s advantage and such a state of uncertainty results in confusion being worse confounded. The overall and larger impact of all this is that public interest suffers.

33. The facts of the case before us indicate that in the first instance the learned Single Judge took it upon himself to actually ascertain the correctness of the key answers to seven questions. This was completely beyond his jurisdiction and as decided by this Court on several occasions, the exercise carried out was impermissible. Fortunately, the Division Bench did not repeat the error but in a sense, endorsed the view of the learned Single Judge, by not considering the decisions of this Court but sending four key answers for consideration by a one-man Expert Committee.

34. Having come to the conclusion that the High Court (the learned Single Judge as well as the Division Bench) ought to have been far more circumspect in interfering and deciding on the correctness of the key answers, the situation today is that there is a third evaluation of the answer sheets and a third set of results is now ready for declaration. Given this scenario, the options before us are to nullify the entire re-evaluation process and depend on the result declared on 14th September, 2010 or to go by the third set of results. Cancelling the examination is not an option. Whichever option is chosen, there will be some candidates who are likely to suffer and lose their jobs while some might be entitled to consideration for employment.

35. Having weighed the options before us, we are of opinion that the middle path is perhaps the best path to be taken under the circumstances of the case. The middle path is to declare the third set of results since the Board has undertaken a massive exercise under the directions of the High Court and yet protect those candidates may now be declared unsuccessful but are working as Trained Graduate Teachers a result of the first or the second declaration of results. It is also possible that consequent upon the third declaration of results some new candidates might get selected and should that happen, they will need to be accommodated since they were erroneously not selected on earlier occasions.

36. Learned counsel for the appellants contended before us that in case her clients are not selected after the third declaration of results, they will be seriously prejudiced having worked as Trained Graduate Teachers for several years. However, with the middle path that we have chosen their services will be protected and, therefore, there is no cause for any grievance by any of the appellants. Similarly, those who have not been selected but unfortunately left out they will be accommodated.

37. As a result of our discussion and taking into consideration all the possibilities that might arise, we issue the following directions:

(1) The results prepared by the Board consequent upon the decision dated 2nd November, 2015 of the High Court should be declared by the Board within two weeks from today.

(2) Candidates appointed and working as Trained Graduate Teachers pursuant to the declaration of results on the earlier occasions, if found unsuccessful on the third declaration of results, should not be removed from service but should be allowed to continue.

(3) Candidates now selected for appointment as Trained Graduate Teachers (after the third declaration of results) should be appointed by the State by creating supernumerary posts. However, these newly appointed Trained Graduate Teachers will not be entitled to any consequential benefits.

38. Before concluding, we must express our deep anguish with the turn of events whereby the learned Single Judge entertained a batch of writ petitions, out of which these appeals have arisen, even though several similar writ petitions had earlier been dismissed by other learned Single Judge(s). Respect for the view taken by a coordinate Bench is an essential element of judicial discipline. A judge might have a difference of opinion with another judge, but that does not give him or her any right to ignore the contrary view. In the event of a difference of opinion, the procedure sanctified by time must be adhered to so that there is demonstrated respect for the rule of law.

39. With the above directions, the appeals and miscellaneous applications are disposed of.

(Madan B. Lokur)

(Deepak Gupta)

New Delhi;

December 11, 2017

CIVIL, Service Law

The Departmental Proceedings (Enforcement Of Attendance Of Witnesses And Production Of Documents) Act, 1973 [West Bengal]

5 Dec 2017 Advocatetanmoy

West Bengal Act 24 of 1973

[7th May, 1973.]Assent of the Governor was published in the Calcutta Gazette, Extraordinary, dated the 7th May, 1973.

An Act to provide for the enforcement of attendance of witnesses and production of documents in certain departmental proceedings and for matters connected therewith or incidental thereto.

Whereas it is expedient to provide for the enforcement of attendance of witnesses and production of documents in certain departmental proceedings and for matters connected therewith or incidental thereto;

It is hereby enacted as follows :-

1. Short title and extent. – (1) This Act may be called the Departmental Proceedings (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1973.

2. Departmental proceedings to which the Act shall apply. – The provisions of this Act shall apply to every departmental proceedings made in relation to-

(a) persons appointed to public services or posts in connection with affairs of the State;

(b) persons who, having been appointed to any public service or post in connection with the affairs of the State, are in service or pay of,-

(i) any local authority,

(ii) any corporation owned or controlled by the State Government,

(iii) any Government company within the meaning of section 617 of the Companies Act, 1956, in which not less than fifty-one per cent, of the paid-up share capital is held by the State Government or any company which is a subsidiary of such Government company,

(iv) any society registered under the West Bengal Societies Registration Act, 1961, which is subject to the control of the State Government.

3. Definitions. – For the purposes of this Act,-

(a) “departmental proceedings” mean proceedings held under and in accordance with-

(i) any law made by Parliament or by the State Legislature or any rule made under any such law, or

(ii) any rule made under the proviso to article 309, or continued under article 313, of the Constitution of India,

into any allegation or lack of integrity, insubordination or dereliction of duty in any manner whatsoever, against any person to whom this Act applies;

(b) “inquiring authority” means an officer or authority appointed by the State Government or by any officer or authority subordinate to that Government to hold departmental proceedings and includes any officer or authority who is empowered by or under any law or rule for the time being in force to hold such inquiry;

4. Power of State Government to authorise the exercise of powers specified in section 5. – (1) Where the State Government is of opinion that for the purposes of any departmental proceedings it is necessary to summon as witnesses, or call for any document from, any class or category of persons, it may, by notification in the Official Gazette, authorise the inquiring authority to exercise the power specified in section 5 in relation to any person within such class or category and thereupon the inquiring authority may exercise such power at any stage of the departmental proceedings.(2) The power conferred on the State Government by sub-section (1) may also be exercised by such authority, not being an authority inferior to the appointing authority in relation to the person against whom the departmental proceedings are being held, as the State Government may, by notification in the Official Gazette, specify in this behalf.

5. Power of authorised inquiring authority to enforce attendance of witnesses and production of documents. – (1) Every inquiring authority under section 4 (hereinafter referred to as the ‘authorised inquiring authority”) shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters namely :-

(a) the summoning and enforcing the attendance of any witness and examining him on oath;

(b) requiring the discovery and production of any document or other material which is producible as evidence;

(2) Every process issued by an authorised inquiring authority for the attendance of any witness or for the production of any document shall be served and executed through the Chief Presidency Magistrate in Calcutta or through the District Judge in a district, within the local limits of whose jurisdiction the witness or other person, on whom the process is to served or executed, voluntarily resides or carries on business or personally works for gain, and, for the purpose of taking any action for the disobedience of any such process, every such process shall be deemed to be process issued by the Chief Presidency Magistrate or the District Judge, as the case may be.(3) Every authorised inquiring authority making any departmental proceedings under this Act shall be deemed to be a civil court for the purposes of sections 480 and 482 of the Code of Criminal Procedure, 1898.

6. Power to make rules. – The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

CIVIL, Service Law

Khilendra Singh Vs. Union of India, Ministry of Agriculture through Secretary & Ors [SC 2017 November]

30 Nov 2017 Advocatetanmoy

KEYWORDS:- Backword Class-Jaat caste

Capture

The Central List of OBCs prepared for the States of Uttar Pradesh in 1993 did not include the “Jaat” caste/ community. The State of Uttarakhand was formed in 2000. By a Resolution passed in 2010, the National Commission for Backward Classes resolved that till the Central List for the State of Uttarakhand was finalized, the List that was in operation in the State of Uttar Pradesh will be followed for appointment to the Central posts reserved for OBCs. The advertisement and selection in this case was made in the year 2007 when the caste to which the Appellant belongs i.e. “Jaat” was not in the Central List for Uttar Pradesh.

DATE: November 28, 2017

ACTS:-National Commission for Backward Classes Act, 1993

SUPREME COURT OF INDIA

Khilendra Singh Vs. Union of India, Ministry of Agriculture through Secretary & Ors.

[Civil Appeal No. 19862 of 2017 arising out of Special Leave Petition (Civil) No. 14201 of 2011]

L. NAGESWARA RAO, J.

1. Leave granted.

2. The Appellant applied for appointment to the posts of Subject Matter Specialist (Crop Protection & Crop Psychology) in Vivekananda Parvatiya Krishi Anusandhan Sansthan, Almora. The Appellant belongs to “Jaat” caste which was falling within the category of Other Backward Classes (OBCs) in the State of Uttar Pradesh. The Tesildar, Thakurdwara, Moradabad (U.P.) issued a certificate in favour of the Appellant stating that he belongs to Other Backward Classes on 22nd June, 2007. The Appellant was appointed on 2nd January, 2008 in a post reserved for OBCs. A show-cause notice was issued to the Appellant asking him to explain as to why his appointment should not be cancelled as the community to which he belongs is not found in the Central List of OBCs. The Appellant submitted his explanation on 6th November, 2010. An inquiry was conducted and on the basis of the recommendation of the Inquiry Committee, the services of the Appellant were terminated on 20th November, 2010. He approached the High Court of Uttarakhand at Nainital by filing Writ Petition challenging the order of termination. The Writ Petition was dismissed vide judgment dated 24th February, 2011, the legality of which is assailed in the above Appeal.

3. The National Commission for Backward Classes was constituted by the National Commission for Backward Classes Act, 1993 (Act 27 of 1993). Section 9 of the Act empowers the Commission to examine requests for inclusion of any class of citizens as a backward class in the lists and hear complaints of over-inclusion or under-inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. Section 2(c) defines “Lists” as follows: (c) “lists” means lists prepared by the Government of India from time to time for purposes of making provision for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of that Government, are not adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the control of the Government of India

4. By a proceeding dated 10th September, 1993 the Government of India finalised the Central List of OBCs for each State. A common List for the State of Uttar Pradesh was annexed to the said proceedings in which the caste of “Jaat” was not included. The matter pertaining to the inclusion of “Jaat” in the Central List of OBCs for the States of Uttar Pradesh, Madhya Pradesh, Haryana and Rajasthan came up for consideration before the Commission in the year 1997. The National Commission for Backward Classes recommended inclusion of “Jaat” caste in the OBCs only for the State of Rajasthan and not the other three States. On the basis of the power of review that was conferred on the National Commission for Backward Classes, the matter was examined afresh.

The National Commission for Backward Classes conducted hearings in Delhi to consider the request of “Jaat” caste in the Central List of OBCs for nine States including the State of Uttar Pradesh. The National Commission for Backward Classes advised the Central Government not to include the “Jaat” caste/ community in the Central List of OBCs. While rejecting the recommendation made by the National Commission for Backward Classes, the Central Government issued a notification including “Jaat” caste/ community in the Central List of OBCs for the States of Uttar Pradesh/ Uttarakhand and seven other States in 2014.

5. A perusal of the facts that are stated in the preceding paragraph on the basis of the counter affidavit filed by the National Commission for Backward Classes would show that “Jaat” caste/ community is in the Central List of OBCs for the State of Uttarakhand from 2014. The Central List of OBCs prepared for the States of Uttar Pradesh in 1993 did not include the “Jaat” caste/ community. The State of Uttarakhand was formed in 2000. By a Resolution passed in 2010, the National Commission for Backward Classes resolved that till the Central List for the State of Uttarakhand was finalized, the List that was in operation in the State of Uttar Pradesh will be followed for appointment to the Central posts reserved for OBCs. The advertisement and selection in this case was made in the year 2007 when the caste to which the Appellant belongs i.e. “Jaat” was not in the Central List for Uttar Pradesh.

6. We are not in agreement with the reasons given by the High Court while dismissing the Writ Petition. It was held in the impugned judgment that the List prepared by the State of Uttarakhand would be applicable for appointment to Central posts. We approve the final conclusion of the High Court that the Appellant was not entitled for appointment in the post reserved for OBCs, though for different reasons as stated supra.

7. The Appeal is dismissed accordingly. No costs.

[S.A. BOBDE]

[L. NAGESWARA RAO]

Union of India & Ors. Vs. Kamal Kishore & Ors., Etc.

[Civil Appeal Nos. 19859-19860 of 2017 arising out of Special Leave Petition (Civil) Nos.18584-85 of 2012

L. NAGESWARA RAO, J.

1. Leave granted.

2. The writ petitions filed by the Respondents seeking appointment to the post of Constable G.D. in Central Reserve Police Force (CRPF) in the category of Other Backward Classes (OBCs) were allowed by a learned Single Judge of the High Court of Uttarakhand at Nainital. The Appeals filed by the Union of India were dismissed by a Division Bench. The Appellants have approached this Court challenging the correctness of the said judgment of the High Court.

3. An advertisement was issued on 24th July, 2010 duly published in daily newspaper Uttar Ujala inviting applications for appointment to the post of Constable G.D. in the CRPF from Indian citizens residing in the States of Uttar Pradesh and Uttarakhand. 78 vacancies were notified out of which nine were reserved for OBCs. 13 backlog vacancies of OBCs were also included in the notification. The Respondents who belong to Saini, Momin (Ansar), Gujjar and Kahar communities applied for being considered for appointment to the posts reserved for OBCs.

They qualified in the written examination and appeared before a medical board for medical examination. Their names were not included in the final list that was prepared for appointment. On enquiry, they found that their names were shifted to the general category from the OBC category on the ground that the castes to which they belong did not find place in the OBCs List for the Central Government services for Uttarakhand State as per “Swamy’s Compilation on Reservations and Concessions” book. They could not be appointed on the basis of the marks they obtained in the general category.

4. The Respondents filed Writ Petitions in the High Court of Uttarakhand seeking issuance of Mandamus for commanding the Appellants to appoint them to the post of Constable G.D. in CRPF against the post reserved for OBC candidates of Uttarakhand. The Appellants filed a counter affidavit in the High Court in which it was stated that the Respondents were not entitled to be considered for appointment in the posts reserved for OBCs as the castes to which they belong were not included in the List of OBCs for Central Government services, Uttarakhand State as per “Swamy’s Compilation on Reservations and Concessions” book.

The learned Single Judge of the High Court of Uttarakhand at Nainital allowed the Writ Petitions vide judgment dated 11th October, 2011 by relying upon a judgment of the High Court in Deepak Kumar versus Gurukul Kangri University, Haridwar1. It was also held that there is no dispute about the fact that the castes to which the Respondents belong are OBCs in the State of Uttarakhand. The Appellants could not succeed in convincing the Division Bench of the High Court that the judgment of the learned Single Judge warranted interference.

5. Pursuant to the judgment of this Court in Indra Sawhney versus Union of India2, the Government of India decided to implement reservation of 27% in civil posts and services in favour of OBCs. On the recommendations made by an Expert Committee, a Central List of OBCs was prepared for each State. The Central List of OBCs prepared for the State of Uttar Pradesh included the castes of the Respondents. The State of Uttarakhand was created in the year 2000. In the judgment of Deepak Kumar (supra) relied upon by the learned Single Judge in this case, a reference was made to a letter dated 28th July, 2011 issued by the National Commission for Backward Classes.

It was stated in the said letter that the Central List for OBCs for the State of Uttarakhand was under process and that till it was finalized, the List for Uttar Pradesh will be applicable for appointment to Central posts in the State of Uttarakhand. The National Commission for Backward Classes has filed a counter affidavit in these Appeals supporting the Respondents. The Commission stated in the affidavit that the List of OBCs for the State of Uttar Pradesh will enure to the benefit of those residing in Uttarakhand for appointment to services under the Union of India till the Central List of OBCs for Uttarakhand is finalized. It was further stated that by a Resolution dated 8th December, 2011, the Central Government notified the Central List of OBCs for the State of Uttarakhand which consisted of 84 castes.

6. Ms. Indu Malhotra, learned senior counsel appearing for the Union of India relied upon a proceeding dated 12th March, 2007 which was filed along with the rejoinder to contend that there was only one caste included in the Central List for the State of Uttarakhand. She submitted that all the other OBCs were included in the Central List only in 2011 and as the selections in the present case were conducted in 2010, the Respondents whose castes were not in the list of OBCs cannot be considered in the posts reserved for OBCs. We are not in agreement with the said submission as a perusal of the proceeding dated 12th March, 2007 would show that it pertains to inclusion/ amendments in the Central List of OBCs in respect of various States.

There is no doubt that one caste Rai-Sikh (Mahatam) was shown in the proposed Entry at serial No.1. It means that the caste was included by the proceeding as an OBC. It does not mean that there was only one caste falling within the category of OBCs in the State of Uttar Pradesh. The position as it existed pertaining to reservation to OBC posts in Uttarakhand is explained by the National Commission for Backward Classes. It is clear from the affidavit filed by the National Commission for Backward Classes that a decision was taken in 2010 to apply the Central List prepared for the State of Uttar Pradesh to the State of Uttarakhand till the List of OBCs for Uttarakhand was finalized.

The List was finalized in 2011. There cannot be any doubt that the Respondents belong to the castes which were included in the Central List of OBCs for the State of Uttar Pradesh and were entitled to be considered for the posts reserved for OBCs in the advertisement that was issued on 24th July, 2010. There was some confusion about the applicability of the Lists of the OBCs prepared by the States of Uttar Pradesh and Uttarakhand for implementing reservation in the State’s civil posts. Those Lists have no relevance for appointment to services under the Union of India.

7. Before concluding, it is necessary to mention that the Respondents were deprived of their consideration to the posts reserved for OBCs only on the ground that the castes to which they belong did not find a place in “Swamy’s Compilation on Reservations and Concessions” book. This practice of relying upon private books for the purpose of defeating the rights of citizens is deprecated. The Union of India ought to have referred to the Resolutions of the National Commission for Backward Classes and the Central List that were prepared by the Government of India from the official publications. For no fault of theirs, the Respondents were not considered for appointment as Constables G.D. in CRPF in the year 2010.

8. We uphold the judgment of the High Court and direct the Appellants to consider the Respondents for appointment as Constables G.D., CRPF in the posts reserved for OBCs in the advertisement dated 24th July, 2010. The Appellants are directed not to deny the appointment to the Respondents on the ground that they are now over-aged provided they fulfill the condition of fitness.

9. For the aforementioned reasons, the Appeals are dismissed.

[S.A. BOBDE]

[L. NAGESWARA RAO]

CIVIL, Service Law

District Development Officer & ANR. Vs. Satish Kantilal Amrelia [SC 2017 November]

30 Nov 2017 Advocatetanmoy

KEYWORDS:- termination from Service- Compensation -Retrenchment

Capture

It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation

Act : Section 10 of Industrial Disputes Act, 1947 -Section 25-G

DATE : November 28, 2017

SUPREME COURT OF INDIA

District Development Officer & ANR. Vs. Satish Kantilal Amrelia

[Civil Appeal Nos. 19857-19858 of 2017 arising out of SLP (C) Nos.11956-11957 of 2015]

Abhay Manohar Sapre, J.

1. Leave granted.

2. These appeals are filed against the final judgment and order dated 01.12.2014 passed by the High Court of Gujarat at Ahmedabad in Civil Application No.10519 of 2014 in Letters Patent Appeal No.1878 of 2006, wherein the High Court dismissed the Letters Patent Appeal filed by the appellant herein in default and further declined to 1 restore the appeal when prayed by the appellant. The Letters Patent Appeal arose out of judgment and final order of the Single Judge dated 21.04.2006 in Special Civil Application No.8390 whereby the learned Single Judge dismissed the writ petition filed by the appellant and affirmed the Award dated 01.02.2006 passed by Labour Court, Bhavnagar in Reference Case No.166 of 1992.

3. The controversy involved in the appeals is confined to short facts, which, however, need mention hereinbelow to appreciate the same.

4. The appellant is the Panchayat Department of State of Gujarat having its office at Bhavnagar. The respondent – Satish Kantilal Amrelia worked in the appellant’s Revenue Department at Bhavnagar as a Peon-cum-Driver on daily wages from 18.12.1989 to 31.05.1990 (5 months 15 days) and then started giving his services again as daily wager in appellant’s another branch (Small Saving) from 01.06.1990 to 12.02.1992 (1 year 9 months) on daily payment of Rs.27.55 (Rs.Twenty Seven and Fifty Five Paisa). The respondent’s tenure was then discontinued with effect from 12.02.1992 vide order dated 23.03.1992 (Annexure P-4).

5. The respondent felt aggrieved of his termination and initiated two actions against the appellant. In the first instance, challenging his termination order dated 23.03.1992 from the services, the respondent filed Civil Suit No.141 of 1992 in the Civil Court at Bhavnagar. During the pendency of the civil suit, he also approached to the State (Labour Commissioner) and prayed for making Industrial Reference to the concerned Labour Court under Section 10 of Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”) for deciding the legality and propriety of his termination order.

6. The Labour Commissioner made an Industrial Reference No.166 of 1992 to the Labour Court No. 2 at Bhavnagar for deciding the legality and correctness of the termination order and for regularization of respondent’s services.

7. The 2nd Joint Civil Judge (SD), Bhavnagar, vide judgment/decree dated 03.05.1994 decreed the respondent’s suit, set aside the termination order and directed the appellant (State) to re-instate the respondent in service with all consequential benefits.

8. Against the judgment/decree of the Trial Court, the appellant filed first appeal being Civil Appeal No.45/1994 before the Assistant Judge, Bhavnagar. The Appellate Court, by order dated 30.09.2003, allowed the appellant’s appeal, set aside the judgment/decree of the Trial Court and dismissed the respondent’s civil suit. In substance, the Appellate Court upheld the respondent’s termination order.

9. The Labour Court, however, by Award dated 01.02.2006 (Annexure P-9) answered the Reference in respondent’s favour. Applying the provisions of the Act, the Labour Court held that since the 4 respondent was able to prove that he has worked for 240 days continuously in one previous calendar year, he was entitled to get the protection of the Act. It was held that it was a case of illegal retrenchment because the respondent was not paid any prior retrenchment compensation before termination of his services. The Labour Court also held that there was violation of Section 25-G of the Act in passing the termination order. The Labour Court accordingly directed the appellant(State) to re-instate the respondent in service along with payment of 40% back wages.

10. The appellant (State) felt aggrieved, filed writ petition (Special Civil Application No.8390/2006) before the High Court of Gujarat. By order dated 21.04.2006, the Single Judge dismissed the appellant’s writ petition and affirmed the Award of the Labour Court. The appellant then filed Letters Patent Appeal before the Division Bench of the High Court but it was dismissed in default. The appellant applied for restoration of the Letters Patent Appeal but it was dismissed and hence this appeal by special leave was filed by the State before this Court against the order of the Division Bench as also against the order of the Single Judge.

11. Heard Ms. Jesal Wahi, learned counsel for the appellants and Mr. Purvish Jitendra Malkan, learned counsel for the respondent.

12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeals in part and while setting aside the impugned orders (Single Judge and Division Bench), modify the Award of the Labour Court as indicated below.

13. Having gone through the entire record of the case and further keeping in view the nature of factual controversy, findings of the Labour Court, the manner in which the respondent fought this litigation on two fronts simultaneously, namely, one in Civil Court and the other in Labour Court in challenging his termination order and seeking regularization in service, which resulted in passing the two conflicting orders – one in respondent’s favour (Labour Court) and the other against him (Civil Court) and lastly, it being an admitted fact that the respondent was a daily wager during his short tenure, which lasted hardly two and half years approximately and coupled with the fact that 25 years has since been passed from the date of his alleged termination, we are of the considered opinion that the law laid down by this Court in the case of Bharat Sanchar Nigam Limited vs. Bhurumal would aptly apply to the facts of this case and we prefer to apply the same for disposal of these appeals.

14. It is apposite to reproduce what this Court has held in the case of Bharat Sanchar Nigam Limited (supra):

“33. It is clear from the reading of the aforesaid judgments that the ordinary principle of grant of reinstatement with full back wages, when the termination is found to be illegal is not applied mechanically in all cases. While that may be a position where services of a regular/permanent workman are terminated illegally and/or mala fide and/or by way of victimisation, unfair labour practice, etc. However, when it comes to the case of termination of a daily-wage worker and where the termination is found illegal because of a procedural defect, namely, in violation of Section 25-F of the Industrial Disputes Act, this Court is consistent in taking the view that in such cases reinstatement with back wages is not automatic and instead the workman should be given monetary compensation which will meet the ends of justice. Rationale for shifting in this direction is obvious.

34. The reasons for denying the relief of reinstatement in such cases are obvious. It is trite law that when the termination is found to be illegal because of non-payment of retrenchment compensation and notice pay as mandatorily required under Section 25-F of the Industrial Disputes Act, even after reinstatement, it is always open to the management to terminate the services of that employee by paying him the retrenchment compensation. Since such a workman was working on daily-wage basis and even after he is reinstated, he has no right to seek regularisation [see State of Karnataka v. Umadevi (3)17].

Thus when he cannot claim regularisation and he has no right to continue even as a daily-wage worker, no useful purpose is going to be served in reinstating such a workman and he can be given monetary compensation by the Court itself inasmuch as if he is terminated again after reinstatement, he would receive monetary compensation only in the form of retrenchment compensation and notice pay. In such a situation, giving the relief of reinstatement, that too after a long gap, would not serve any purpose.

“35. We would, however, like to add a caveat here. There may be cases where termination of a daily-wage worker is found to be illegal on the ground that it was resorted to as unfair labour practice or in violation of the principle of last come first go viz. while retrenching such a worker daily wage juniors to him were retained. There may also be a situation that persons junior to him were regularised under some policy but the workman concerned terminated. In such circumstances, the terminated worker should not be denied reinstatement unless there are some other weighty reasons for adopting the course of grant of compensation instead of reinstatement. In such cases, reinstatement should be the rule and only in exceptional cases for the reasons stated to be in writing, such a relief can be denied.”

15. We have taken note of one fact here that the Labour Court has also found that the termination is bad due to violation of Section 25-G of the Act. In our opinion, taking note of overall factual scenario emerging from the record of the case and having regard to the nature of the findings rendered and further the averments made in the SLP justifying the need to pass the termination order, this case does not fall in exceptional cases as observed by this Court in Para 35 of Bharat Sanchar Nigam Limited case (supra) due to finding of Section 25-G of the Act recorded against the appellant. In other words, there are reasons to take out the case from exceptional cases contained in Para 35 because we find that the appellant did not resort to any kind of unfair practice while terminating the services of the respondent.

16. In view of forgoing discussion, we are of the considered view that it would be just, proper and reasonable to award lump sum monetary compensation to the respondent in full and final satisfaction of his claim of re-instatement and other consequential benefits by taking recourse to the powers under Section 11-A of the Act and the law laid down by this Court in Bharat Sanchar Nigam Limited case (supra).

17. Having regard to the totality of the facts taken note of supra, we consider it just and reasonable to award a total sum of Rs.2,50,000/- (Rs.Two Lakhs Fifty Thousand) to the respondent in lieu of his right 10 to claim re-instatement and back wages in full and final satisfaction of this dispute.

18. Let the payment of Rs.2,50,000/- be made by the appellant(State) to the respondent within three months from the date of receipt of this judgment failing which the amount will carry interest at the rate of 9% per annum payable from the date of this judgment till payment to respondent.

19. In view of foregoing discussion, the appeals succeed and are allowed in part. The impugned order of the Division Bench and that of the Single Judge are set aside. The Award of the Labour Court dated 01.02.2006 is accordingly modified to the extent indicated above.

[R.K. AGRAWAL]

[ABHAY MANOHAR SAPRE]

CIVIL, Service Law

Raj Balam Prasad & Ors. Vs. State of Bihar & Ors.[SC 2017 November]

30 Nov 2017 Advocatetanmoy

keywords:- regularization of appointment- Temporary appointment

Capture

One cannot dispute that the State has the power to appoint persons for a temporary period under the Act and Rules framed thereunder and once such power was exercised by the State, the status of such appointee continued to be that of temporary employee notwithstanding grant of some extensions to them for some more period.
The grant of extension to work for some more period to the writ petitioners could never result in conferring on them the status of a permanent employee or/and nor could enable them to seek regularization in the services unless some Rule had recognized any such right in their favour

Act : under Rule 57-A of the Bihar Certificate Manual, the instructions issued under the Bihar and Orissa Public Demand Recovery Act

DATE: November 27, 2017

SUPREME COURT OF INDIA

Raj Balam Prasad & Ors. Vs. State of Bihar & Ors.

[Civil Appeal No.19846 of 2017 arising out of SLP (C) No.31638 of 2016]

Abhay Manohar Sapre, J.

1. Leave granted.

2. The appeal is filed against the final judgment and order dated 29.02.2016 passed by the High Court of Judicature at Patna in Letters Patent Appeal No.1760 of 2012 whereby the Division Bench of the High Court allowed the appeal filed by the respondents herein by setting aside the order dated 2 08.05.2012 of the Single Judge in C.W.J.C. No.4247 of 2012 which allowed the appellants’ writ petition and issued a writ of mandamus directing the State to regularize the services of the appellants on the post of “Muharrirs” .

3. The controversy involved in the appeal is confined to short facts, which, however, need mention hereinbelow to appreciate the same.

4. The short question, which arises for consideration in this appeal, is whether the Division Bench of the High Court was justified in dismissing the appellants’ writ petition by allowing the intra court appeal filed by the respondents herein and reversing the order of the Single Judge which had allowed the appellants’ writ petition by issuing a mandamus directing the State(respondents) to regularize the appellants on the post of “Muharrir”.

5. Eight (8) persons were appointed on the post of “Muharrir” in the Office of Collector, Saran Chpara (Bihar) in the year 1987-88 by the State (Collector). These eight persons included present four (4) appellants herein. The appointment of these eight persons was made as temporary appointment for a period of three months. These appointments were made by the authority concerned by taking recourse to the powers under Rule 57-A of the Bihar Certificate Manual, the instructions issued under the Bihar and Orissa Public Demand Recovery Act (hereinafter referred to as “the Act”).

6. These temporary appointments were made for disposal of several pending certificate cases, which could not be disposed of for want of adequate hands available in the office. However, the services of the eight persons were extended for sometime by issuing extension orders. It was up to the year 1991.

7. These eight Muharrirs filed a writ petition (C.W.J.C. No. 5142 of 1991) in the High Court at Patna claiming therein a relief for their regularization in services as Muharrir. By order 4 dated 03.04.2001, the Single Judge disposed of the writ petition by granting liberty to the writ petitioners to submit their representation to the Competent Authority to enable them to examine their grievances on the question of regularization in service.

8. The writ petitioners (8) felt aggrieved and filed intra court appeal. The Division Bench dismissed the appeal (L.P.A. No.434 of 2001) by order dated 28.07.2007 but further made pertinent observations and, in consequence, also issued directions.

9. In the opinion of the Division Bench, when the services of the writ petitioners had come to an end on 03.06.1991 and 19.06.1991 and when these two orders were not stayed by the Writ Court (Single Judge) in the writ petition filed by the writ petitioners then how the writ petitioners could continue in services even as daily wagers thereafter and how some of the writ petitioners were able to get their services regularized from 10.10.2006. The Division Bench, therefore, while expressing their concern directed the State Vigilance Department to look into the matter and take appropriate steps in accordance with law.

10. As mentioned above, in the meantime, out of eight Muharrirs, the services of five Muharrirs including one more person by name Mr. Sugriev Singh were regularized by order dated 10.10.2006.

11. The writ petitioners, whose services could not be regularized, felt aggrieved and filed SLP in this Court. This Court dismissed the SLP and granted liberty to the petitioners to file representations to the concerned authority for ventilating of their grievance.

12. It is not in dispute that the Competent Authority, by order dated 15.01.2012, rejected the representation made by the appellants stating therein that since their services had already come to an end in 1991, no orders for their regularization could now be passed.

13. These persons then filed another round of writ petition (C.W.J.C. No.4247 of 2012) and claimed the same relief of regularization in the services by basing their case on one Circular dated 16.04.2008. The Single Judge allowed the writ petition by order 29.08.2011 and issued a mandamus against the State and the concerned department to regularize the services of the appellants on the post of Muharrirs.

14. The respondents herein (State and the concerned departments) felt aggrieved and filed intra Court appeal before the Division Bench. By impugned judgment, the Division Bench allowed the State’s appeal and dismissed the appellants’ writ petition. It is against this judgment, the writ petitioners have felt aggrieved and filed this appeal by way of special leave before this Court.

15. Heard Mr. Praneet Ranjan, learned counsel for the appellants and Mr. Manish Kumar, learned counsel for the respondents.

16. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal. In our opinion, the view taken by the Division Bench appears to be just, legal and proper and hence does not call for any interference.

17. This is what the Division Bench held for allowing the appeal and dismissing the appellants’ writ petition: “We have heard learned counsel for the parties and find that the order passed by the learned Single Judge is not sustainable in law. The order passed in LPA No.434 of 2001 dated 28th of July, 2008 was not brought to the notice of the learned Single Judge. It is further contended that even if the order dated 10.10.2006 was not have set aside, the fact remains that such order of regularization could not have been passed since the services of the Muharrir have come to an end in 1991 itself. The permanent status could be conferred to those who were in service and not to those whose service had come to an end many years ago. Such an order could not be made basis of permanent status through the writ court. Such order dated 10.10.2006 is not enforceable in law. The representation having been declined in the light of the circular dated 16.04.2008, we do not find that the writ petitioners were entitled to any direction to treat them as regular employees.”

18. We agree with the reasoning of the Division Bench quoted supra.

19. In our opinion also, when the appointment of the appellants (writ petitioners) was made for a fixed period in exercise of the powers under Rule 57-A and the said appointment period having come to an end in the year 1991 after granting some extension, we fail to appreciate as to how the appellants could claim to remain in service after 1991.

20. One cannot dispute that the State has the power to appoint persons for a temporary period under the Act and Rules framed thereunder and once such power was exercised by the State, the status of such appointee continued to be that of temporary employee notwithstanding grant of some extensions to them for some more period.

21. In other words, the grant of extension to work for some more period to the writ petitioners could never result in conferring on them the status of a permanent employee or/and nor could enable them to seek regularization in the services unless some Rule had recognized any such right in their favour.

22. That apart, when the period fixed in the appointment orders expired in the year 1991 then there was no scope for the appellants to have claimed continuity in service for want of any extension order in that behalf.

23. We have perused the Circular dated 16.04.2008 (Annexure P-7) issued by the State. This Circular only says that if any temporary persons are appointed for a particular project and if they are found to be of some utility, their services can be regularized as per Rules.

24. As mentioned above, so far as the cases of these appellants are concerned, their representations were examined by the State but were rejected finding no merit therein. One of the reasons for rejection of the representation was that the services of the appellants had already come to an end in 1991 and, therefore, no orders to regularize their services could now be passed after such a long lapse of time.

25. As rightly observed by the Division Bench in the impugned judgment, the earlier order of the Division Bench in which a vigilance inquiry was ordered to find out as to how an order of regularization could be passed in favour of some Muharrirs was not brought to the notice of the Single Judge which led him to allow the appellants’ writ petition.

26. Learned counsel for the appellants, however, argued vehemently that the order of the Single Judge deserves to be restored by setting aside the impugned judgment of the Division Bench as the same is based on proper reasoning but in the light of what we have held supra, we cannot accept his submission. In our opinion, the Division Bench was right in setting aside of the order of the Single Judge and we concur with the reasoning and the conclusion of the Division Bench. In addition, we have also given our reasoning in support thereof.

27. In the light of foregoing discussion, we find no merit in the appeal, which thus fails and is accordingly dismissed.

[R.K. AGRAWAL]

[ABHAY MANOHAR SAPRE]

CIVIL, Service Law

Leave rules for West Bengal Govt. Employees

19 Nov 2017 Advocatetanmoy

There are following types of leaves which are applicable for the Permanent/ Temporary Govt. employees of West Bengal. The latest revision of leave rules by G.O. are also considered along with-

West Bengal Service Rule Part I, Rule 144 to 207.

Types of Leave	Admissibility	Period of Leave	Pay
Earned Leave	Private affairs and medical ground.	30 days per year, maximum credit 300 days.	Full Pay.
Half Pay Leave	Private affairs and medical ground.	20 days for every year. advance half pay leave is permitted.	Half Pay.
Commuted Leave	a) Medical ground, not exceeding half the amount of half pay leave due. b) Study purpose in the interest of public service up to a maximum of 90 days.	Twice the amount of half pay leave is debited.	Full Pay.
Leave not Due	Medical ground based on medical certificate.	360 days during entire period of service.	Half Pay.
Extraordinary Leave	When no other leave is admissible.	No limit.	Without Pay & Allowances
Special Disability Leave	Disability by injury or in consequence of due performance of official duties on production of medical board’s certificate.	Maximum 24 months.	120 days Full Pay thereafter Half Pay.
Study Leave	Higher study in the interest of public service.	12 months at any one time and 24 months during service period.	Outside India, Full Pay + DA, within India Pay is admissible if Scholarship/ Stipend/ Part time salary is not drawn.
Quarantine Leave	Specified infectious disease certified by medical officer.	Normally 21 days, in exceptional cases 30 days.	Full Pay.
Maternity Leave	Only female Govt. employee. Also admissible for abortion, miscarriage.	Maximum 180 days, 6 weeks for miscarriage and abortion.	Full Pay.
Paternity Leave cum Child Care Leave	Only Male Govt. employee for taking care of upto two children upto 18 years of their age.	30 days.	Full Pay.
Child Care Leave	Only Female Govt. employee for taking care of upto two children upto 18 years of their age.	Maximum 730 days during entire period of service.	Full Pay.
Child Adoption Leave	Only female Govt. employee with less than two surviving children, adopts a child of less than 1 (one) year	Maximum 135 days.	Full Pay.
Hospital Leave	Medical ground.	3 months.	Full Pay and thereafter Half Pay.
Special Sick Leave	Navel staff on medical ground.	Maximum 3 months.	Full Pay.
Casual Leave & Half Day C.L.	Private affairs and medical ground.	14 days in each calender year.	Full Pay.

Ceiling of Maternity Leave Enhanced to a Maximum of 6 Months

Enhancement of Ceiling of Maternity leave to a maximum of 180 days has been published in Finance Department’s Memo No. 1146-F dated 14.02.2011 for West Bengal Govt. Employees.

Enhancement of the limit of Maternity Leave for the Teaching and Non Teaching Female Employees of all recognized Secondary Schools has been published vide Circular No. S/148 dated 03.06.2011 by the Secretary, WBBSE.

In exercise of the power conferred in West Bengal Primary Education Act, 1973an amendment to the West Bengal Primary Education (Leave of Teachers of Primary School) Rules, 1999, regarding maternity leave.

A female Primary Teacher or Non Teaching Employee may be granted maternity leave on full average pay for a period of 180 days from the date of its commencement vide No. 573-SE dated 15.09.2011.

Also for the female employees of State Aided Universities, Maternity Leave is extended vide No. 714-Edn dated 16.09.2011 issued by the Joint Secretary, Higher Education Department.

Period of maternity leave to all contractual employees under PBSSM is extended from 135 days to 180 days vide No. 165-SE dated 19.02.2013.

All categories of female contractual employee will get the benefit of maternity leave for a maximum period of 180 days and 42 days of such leave in case of abortion/ miscarriage vide No. 4821-F dated 03.08.2017

Grant of Paternity-cum-Child Care Leave for 30 Days

GOVERNMENT OF WEST BENGAL
FINANCE DEPARTMENT
AUDIT BRANCH

No. 1100-F(P) Dated: 25.02.2016

MEMORANDUM

Sub: Grant of Paternity-cum-Child Care Leave for 30 days to the male State Government employees and employees of Panchayat Raj & other Local Bodies, Boards, sponsored/ non-Govt. aided Schools & Colleges, State aided Universities and Companies, Corporations, Undertakings etc.

Introduction of Paternity-cum-Child Care Leave to the male State Government employees and such employees of Panchayat Raj & other Local Bodies, Boards, sponsored/ non-Govt. aided Schools & Colleges, State aided Universities and Companies Statutory Bodies, Undertakings and Corporations which are funded wholly or partially by the State Government was under active consideration of the Government for some time past.

2. Now, after careful consideration of the matter the Governor has been pleased to decide that all male State Government employees as well as such employees of the bodies, boards, educational institutions, entities etc. as above with less than two surviving children will be allowed Paternity-cum-Child Care Leave for 30 days in the following manner.

i) Such leave may be availed of during child birth and upto the age of 18 years of the child.

ii) During such leave he will be paid leave salary equal to the pay drawn immediately before proceeding on leave.

iii) Such leave can be combined with leave of any other kind.

iv) This will not be debited against the leave account.

3. Necessary amendment in the West Bengal Service Rules, Part-I will be made in due course. In case of Panchayat Raj & Local Bodies, Boards, sponsored/ non-Govt. aided Schools & Colleges etc. as above, the concerned Administrative Department will take steps for amendment in the relevant leave rules or regulations or bye-laws as applicable.

4. This order will take immediate effect.

Sd/- H. K. Dwivedi
Principal Secretary to the
Govt. of West Benga

Child Care Leave for West Bengal State Govt. Employees

Government of West Bengal
Finance Department
Audit Branch

No. 1364-F(P) Dated: 15.02.2012

MEMORANDUM

Consequent upon recommendation of the Fifth State Pay Commission for introduction of ‘Child Care Leave’ in favour of female State Government Employees, the matter has been under consideration of the Government for some time past.

After careful consideration of the matter, the undersigned is directed by the order of the Governor to say that the Female Govt. Employees having minor children may be granted Child Care Leave (CCL) by an authority competent to grant leave, for a maximum period of two years (i.e. 730 days) during their entire service period for taking care of upto two children upto 18 years of their age whether for rearing or to look after any of their needs like examination, sickness etc. subject to the following conditions:

(i) During the period of such leave, the female employees shall be paid leave salary equal to the pay drawn immediately before proceeding on leave.

(ii) It may not be granted in more than 3 (three) spells in a calendar year.

(iii) It may not be granted for less than 15 days in a spell.

(iv) Child Care Leave shall not be debited against the leave account.

(v) It may be combined with leave of the kind due and admissible.

(vi) Child Care Leave should not ordinarily be granted during the probation period except in case of certain extreme situation where the leave sanctioning authority is fully satisfied about the need of Child Care Leave to the probationer. It may also be ensured that the period for which such leave is sanctioned during probation is minimal.

(vii) Other terms and conditions as applicable to sanctioning Earned Leave shall be applicable in the matter of sanctioning Child Care Leave.

(viii) An account for the purpose shall have to be maintained under proper attestation by the leave sanctioning authority.

2. This order shall take effects from 1st January, 2012.

3. Formal amendments in the relevant rules of the West Bengal Service Rules will be made in due course.

Sd/- A.K. Das
Joint Secretary to the
Government of West Bengal,
Finance Department.

Child Adoption Leave

Government of West Bengal
Finance Department
Audit Branch

No. 9728-F(P), Dated: 24.10.2011

MEMORANDUM

Sub: Child adoption leave.

The matter of Child adoption leave was under active consideration of the Govt.

After careful consideration of the matter the Governor has been pleased to decide that if a female employee with less than two surviving children, adopts a child of less than 1 (one) year, she will be entitled to 135 days ‘Child adoption leave’.

For the ‘Child adoption leave’ period, salary drawn immediately before proceeding on leave shall be paid.

In continuation of child adoption leave she may avail leave of any kind due and admissible for a period up to one year or till the child is one year old, whichever is earlier. Even leave not due and commuted leave up to 60 days without production of Medical certificate is admissible.

This order shall take immediate effect from 01.10.2011.

Sd/- A.K. Das
Joint Secretary to the
Government of West Bengal
Finance Department

Casual Leave Rules

Casual Leave (CL) is not treated as leave. (WBSR Rule 167)
CL can not be combined with any other leave but as a very special circumstances may be combined with half day casual leave. (WBSR Rule 167)
CL can not be sanctioned for more than 7 consecutive days at a time including Sundays, holidays and weekly off days except for very special circumstances to be recorded in writing. (Appendix 10 of WBSR – I)
CL is admissible for 14 days in each year (January to December).
The authority granting CL should ensure as far as possible that public service does not suffer in any way.
There are provisions for sanctioning half days Casual Leave or Compensatory Casual Leave (CCL) on the 1st half or the 2nd half of the day. (Appendix 10 of WBSR – I)
An officer who takes CL when on tour is not entitled to draw daily allowance during such CL.
Special Casual Leave

Special Casual Leave not exceeding 30 days may be sanctioned for participation in sport events, cultural activities, and mountaineering expedition in any calender year.
The period of absence in excess of 30 days should be treated as regular leave of any kind. Govt. employee may be permitted as a special case to combine special casual leave with regular leave. (Appendix 10 of WBSR – I)
Half day Casual Leave

Half day CL or CCL may be granted either on forenoon or afternoon session.
A person who take half day casual leave/ compensatory casual leave for the forenoon session is required to attend office up to 1:45 pm.
The privilege of taking half day casual leave/ compensatory casual leave shall not admissible on any day in which the office is not held for the full day.
This is also not admissible on any day on which a Government employee is permitted to attend office late or leave office early by any general order. (Appendix 10 of WBSR – I)

CIVIL, Service Law

West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007

19 Nov 2017 Advocatetanmoy

Government of West Bengal
Judicial Department

No. 326-JL. dated 22nd June, 2007

NOTIFICATION

In exercise of the power conferred by the proviso to article 309 of the Constitution of India and in suppression of all earlier notifications on the subject-matter, the Governor, in consultation with the High Court at Calcutta under article 235, read with article 233, of the Constitution, is pleased hereby to make the following rules, namely:-

Rules
Part I
General

1. Short title, commencement and application.

(1) These rules may be called the West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007.

(2) They shall come into force on the date of their publication in the Official Gazette.

(3) They shall apply to the members of the West Bengal Judicial Service including erstwhile members of the West Bengal Civil Service (Judicial) and the West Bengal Higher Judicial Service.

2. Definitions.

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

(a) “Appellate authority” means the Governor of the State of West Bengal;

(b) “Confidential report” means the confidential report referred to in rule 3;

(d) “Government” means the Government of West Bengal;

(e) “Governor” means the Governor of the State of West Bengal;

(f) “High Court” means the High Court of Calcutta;

(g) “Judicial Officer” means an officer who is a member of the West Bengal Judicial Service including erstwhile members of the West Bengal Civil Service (Judicial) and members of the West Bengal Higher Judicial Service; and

(h) “Reviewing authority” means the authority which has suspended a Judicial Officer.

(2) Words and expressions used and not defined in these rules but defined in the West Bengal Service Rules, Part I and Part II. or in the West Bengal Judicial (Conditions of Service) Rules, 2004, shall have the same meanings as respectively assigned to them in those rules.

Part II
Confidential Report

3. Confidential report.

(1) A confidential report assessing the performances, character, conduct and qualities of every Judicial Officer shall be written for each financial year or calendar year, as may be specified by the High Court, ordinarily within two months of the closing of the said year.

(2) Where a Judicial Officer is on deputation of a foreign organisation, the confidential report in respect of the said Judicial Officer may be written for the entire period of his tenure with the said organisation even in case where the period of such tenure exceeds one year.

4. Communication of adverse remarks.

(1) The question of whether a particular remark recorded in the confidential report of a Judicial Officer is adverse, shall be decided by the Chief Justice or the Acting Chief Justice, as the case may be.

(2) Where the confidential report of a Judicial Officer contains an adverse remark, it shall be communicated to him in writing together with a substance of the confidential report within two months of the receipt of the same and certificate to this effect shall be recorded in the confidential report.

5. Representation against adverse remarks.

A Judicial Officer may represent to the Chief Justice or the Acting Chief Justice, as the case may be, against the remarks communicated to him under rule 4 within two months from the date of its receipt by him:

Provided that the High Court may entertain a representation after two months of the expiry’ of the said period if it is satisfied that the Judicial Officer had sufficient cause for not submitting the representation in time.

6. Consideration of representation against adverse remarks.

(1) The Chief Justice or the Acting Chief Justice, as the case may be, on receipt of the representation made under rule 5 by a Judicial Officer, shall send a copy of the same to the Officer, who has made such adverse remarks against such officer in his annual confidential report, to justify the said remarks in the light of the representation within one month from the date of its receipt by him.

(2) The Chief Justice or the Acting Chief Justice, as the case may be, shall consider the representation and reply of the officer who passed the adverse remarks and pass such order preferably within two months of the date of submission of the representation –

(a) rejecting the representation, or toning down the remarks, or

(b) expunging the remarks.

(3) In case no reply is received from the officer, who passed the adverse remarks within the specified period, the Chief Justice or the Acting Chief Justice, as the case may be, shall pass necessary order on merit

Note.— The authorities competent to write confidential report and the authority competent to consider representation against adverse remarks arc such as may be specified by the High Court from time to time. The Chief Justice or the Acting Chief Justice, as the case may be, may nominate anyone or more Judges of the High Court to exercise any power conferred upon him under rule 4, rule 5 and rule 6 of these rules respectively, in respect of one or other class of Judicial Officer.

7. Communication of order.

The order so passed on the representation shall be communicated to the concerned Judicial Officer in writing.

Part III
Suspension

8. Suspension of Judicial Officer.

(1) The High Court may place a Judicial Officer under suspension.-

(a) where a disciplinary proceeding or departmental enquiry against him is contemplated or is pending; or

(b) where in the opinion of the High Court, he has engaged himself in activities prejudicial to the interest or the security of the State; or

Provided that if the criminal charge is related to the official position of the Judicial Officer or involves any moral turpitude on his part, suspension of such Judicial Officer shall be ordered under this sub-rule, unless there ate exceptional reasons for not adopting such a course.

(2) A Judicial Officer who is detained in custody for a period exceeding 48 hours on a criminal charge or otherwise, shall be deemed to have been suspended, by an order of the High Court, with effect from the date of his detention and shall remain under suspension until further order.

(3) A Judicial Officer who is undergoing a sentenced of imprisonment shall be dealt with in the same manner as stated in sub-rule (2) pending a decision on the disciplinary action to be taken against him.

9. Continuation of suspension.

(1) In case of suspension under clause (a) of sub-rule (1) of rule 8, where –

(a) a penalty of dismissal, removal or compulsory retirement from service is imposed on a Judicial Officer under suspension: or

(b) disciplinary proceeding pending against the Judicial Officer under suspension, is set aside on review or otherwise under these rules and the case is remitted for further inquiry or action or with any direction, the order of his suspension shall be deemed to be in force till the final order is passed in the disciplinary proceedings as originally initiated or on remand or otherwise.

(2) In case of suspension under clause (b) of sub-rule (1) of rule 8, the order of suspension shall be deemed to be in force for a period not exceeding three months at a time but subject to extension by the High Court from time to time either before or after expiry of the said period of three months.

(3) In case of suspension under clause (c) of sub-rule (1) of rule 8, the order of suspension shall be deemed to be in force until modified or revoked by the High Court.

(4) An order of suspension made or deemed to have been made under sub-rule (2) of rule 8 shall be deemed to be in force until varied, modified or revoked by the High Court.

Note.- A Judicial Officer who is placed under suspension or be deemed to be under suspension in the circumstances mentioned in this rule, shall, irrespective of the circumstances which led to or resulted in the suspension, be entitled to subsistence grant during the period of suspension, and to pay and allowances, on reinstatement, in respect of the period of suspension, in accordance with the provisions of rules 71 and 72 of the West Bengal Service Rules, Part I, respectively:

Provided that where a Judicial Officer is detained in custody under any law providing for preventive detention, the subsistence grant admissible under this rule shall be reduced by the amount of allowance, if any, paid to the detainee under the relevant laws for the time being in force.

Part IV
Discipline

10. Penalties.

The following penalties may, for good and sufficient reasons, be imposed on a Judicial Officer

(a) Minor penalties:

(i) censure;

(ii) withholding of increment of pay or promotion;

(iii) recovery from pay of the whole or part of any pecuniary loss caused to the State and/or properties in the custody or under the control of the Court concerned by negligence or breach of rules or orders provided that the loss or damage is quantified and charged for.

(b) Major penalties:

(i) reduction to a lower stage in the time scale of pay for a specified period with further direction as to whether or not the Judicial Officer will cam increments of pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay;

(ii) reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Judicial Officer to the time scale of pay, grade, post or service from which he was reduced, with or without further direction regarding conditions of the restoration to the grade or post or service from which the Judicial Officer was reduced and his seniority and pay on such restoration to that grade, post or service;

(iii) compulsory retirement;

(iv) removal from service which shall not be a disqualification for future employment;

(v) dismissal from service which shall ordinarily be a disqualification for future employment;

Explanation.- The following shall not amount to penalty within the meaning of this rule, namely:-

(a) non-promotion, whether in a substantive or officiating capacity, of a Judicial Officer after consideration of his case to a service, grade or post for promotion to which he is eligible;

(b) non-selection for a selection grade post or carrying pay above the basic time scale of pay after consideration of his case;

(c) reversion to a lower service, grade or post of a Judicial Officer officiating in a higher service, grade or post on the ground that he is considered, to be unsuitable for such higher service, grade or post or on administrative grounds unconnected with his conduct;

(d) compulsory retirement of a Judicial Officer in accordance with the provisions relating to his superannuation or retirement;

(e) termination of service of a Judicial Officer appointed on probation during or at the end of his probation in accordance with the terms of his appointment or the rules or orders governing such probation.

Note 1.— If as a result of disciplinary proceedings, any of the penalties specified in this rule is imposed on a Judicial Officer, a record of the same shall invariably be kept in his service book.

Note 2.— A written warning given without any disciplinary proceedings, admonition or reprimand for lapses of occasional and minor nature (such as delays in submitting returns, delivering judgments, irregular attendance) shall not amount to imposition of penalty of “Censure”.

Note 3.— Failure on the part of a Judicial Officer to intimate to his official superior the fact of his arrest and the circumstances connected therewith, shall be regarded as suppression of material information and shall render him liable to disciplinary action on that ground alone, apart from the action that may be called for on the outcome of the criminal case against him.

11. Procedure for imposing major penalties.

(1) No order imposing any of the penalties specified in items (i) to (v) of clause (b) of rule 10, shall be made except after an enquiry held, as far as may be. in the manner provided in this rule.

(2) The Disciplinary authority shall draw up or cause to be drawn up –

(a) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;

(b) a statement of imputations of misconduct or misbehaviour in support of each articles of charge which shall contain –

(i) a statement of relevant facts including any admission or confession made by the Judicial Officer,

(ii) a list of documents by which and a list of witnesses by whom, the articles of charge are proposed to be substantiated.

(3) The Disciplinary authority shall deliver or cause to be delivered to the Judicial Officer a copy of the articles of charge and the statement of imputations of misconduct or misbehaviour prepared under clause (b) of sub-rule (2) and shall require the Judicial Officer to submit to the disciplinary authority within 30 (thirty) days a written statement of his defence and to state whether he desires to be heard in person.

(4) Where the Judicial Officer submits a written statement of his defence and the Disciplinary authority, having regard to the articles of charge and the written statement of defence thereto, is of the opinion that –

(a) any of the penalties specified in items (i) to (iii) of clause (a) of rule 10 shall be imposed, it may pass appropriate orders in the case;

(b) in any other penalties specified in rule 10, the Disciplinary authority shall appoint an Enquiring Officer, not being below the rank of a District Judge or an Additional District Judge for the purpose of holding an enquiry into the charges and forward to it—

(i) a copy of the articles of charge and the statement of imputations or misbehaviour,

(ii) a copy of the written statement of defence;

(iii) copies of the statement of witnesses, if any.

Note 1.— No Judicial Officer equal in rank shall be appointed as Enquiring Officer for holding enquiry against a Judicial Officer:

Provided that in case of holding an enquiry against a District Judge where the Enquiring Officer may be of the same rank, such an Enquiring Officer shall be senior to him:

Provided further that in case a suitable senior officer to be appointed as Enquiring Officer for holding an enquiry against a District Judge in the opinion of the High Court is not available, the High Court may appoint an officer as the Enquiring Officer who shall be above the rank of the District Judge.

Note 2.— If the Enquiring Officer retires from service or is transferred from the station where he was posted at die time of his appointment as such or is otherwise unable to perform the duties as Enquiring Officer, another officer may be appointed in his place by the Disciplinary authority, who may be permitted to proceed with the enquiry from the stage at which the same has been left by the transferred Enquiring Officer or retired Enquiring Officer, as the case may be, or to hold the enquiry de novo.

(5) Where an enquiry against a Judicial Officer is directed, the concerned Judicial Officer shall appear in person before the Enquiring Officer of such day and at such time as he may, in writing, specify in this behalf or within such further lime as the Enquiring Officer may allow.

(6) The Disciplinary authority may appoint any Judicial Officer to present on its behalf the case in support of the articles of charge. The Judicial Officer against whom enquiry is being held may take the assistance of any other Judicial Officer to present the case on his behalf but he shall not engage a legal practitioner for the purpose, without the specific permission, in writing, of the Disciplinary authority.

(7) If the Judicial Officer who has admitted any of the articles of charge in his written statement of defence submitted to the Enquiring Officer, the enquiry shall be proceeded only in respect of those articles of charge which have not been admitted by the concerned Judicial Officer.

(8) The Enquiring Officer shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for production of the documents by such date as may be specified in such requisition:

Provided that the Enquiring Officer may, for reasons to be recorded by it in writing, refuse to requisition such of the document as arc in its opinion not relevant to the case.

(9) Oh receipt of the requisition referred to in sub-rule (8), every authority having the custody or possession of requisitioned documents shall produce the same before the Enquiring Officer:

Provided that if the authority having custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any of such documents would be against the public interest or security of the State, it shall inform the Enquiring Officer accordingly and the Enquiring Officer shall, on being so informed, communicate the information to the Judicial Officer and the Disciplinary authority and subject to the decision of such Disciplinary authority, withdraw the requisition made by it for the production or discovery of such documents.

(10) On the date fixed for the inquiry’, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by, or on behalf of, the Disciplinary authority. The witnesses shall be examined on behalf of the said authority by the presenting officer, where appointed, and may be cross-examined by or on behalf of the Judicial Officer. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the Enquiring Officer. The Enquiring Officer may put such question to the witnesses as it thinks fit

(11) Before the close of the prosecution case, the Enquiring Officer may, if it appears necessary in the interest of justice, allow the Presenting Officer to produce evidence not included in the list given to the Judicial Officer or may itself call for new evidence or recall and re-examine any witness and, in such case, the Judicial Officer shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The Enquiring Officer shall give to the Judicial Officer an opportunity of inspecting such documents before they arc tendered in evidence. The Enquiring Officer may also allow the Judicial Officer to produce new evidence at the appropriate stage, if it is of opinion that the production of such evidence is necessary in the interest of justice.

(12) When the case of the Disciplinary authority is closed, the Judicial Officer shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Judicial Officer shall be required to sign the record. In either of the cases, a copy of the statement of defence shall be given to the Presenting Officer, if any.

(13) The evidence on behalf of the Judicial Officer shall be produced, the witnesses produced by the Judicial Officer shall then be examined and shall be liable to cross-examination and re-examination. They may also be examined by the Enquiring Officer according to the provisions applicable to the witnesses for the Disciplinary authority. The Judicial Officer may examine himself as a witness in his defence.

(14) The Enquiring Officer may, after the Judicial Officer closes his case, and shall, if the Judicial Officer has not examined himself, generally question him for the purpose of enabling the Judicial Officer, to explain any circumstance appearing in the evidence against him.

(15) The Enquiring Officer may, after the completion of the production of evidence, hear the Presenting Officer, if any, and the Judicial Officer, or permit them to file written arguments in support of their respective cases, if they so desire.

(16) If the Judicial Officer, to whom a copy of the articles of charge has been delivered, does not submit
the written statement of defence on or before the date specified for the purpose or does not appear in person before the Enquiring Officer or otherwise fails or refuses to comply with the pro visions of these rules or any order made by the Disciplinary authority or the Enquiring Officer thereunder, the enquiry may be held ex parte against the said Judicial Officer.

(17) Whenever an Enquiring Officer, after having heard and recorded the whole or any part of the evidence in an enquiry, causes to exercise jurisdiction therein and is succeeded by another Enquiring Officer which has. and which exercises, such jurisdiction, the Enquiring Officer so succeeding may consider the evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself:

Provided that if the succeeding Enquiring Officer is of the opinion that further examination of any of the witnesses whose evidence had already been recorded is necessary in the Interest of justice, he may re-call any such witness for further examination as hereinbefore provided.

(18) A report shall, thereafter, be prepared by the Enquiring Officer and such report shall include —

(a) the articles of charge and the statement of imputations of misconduct or misbehaviour;

(b) the defence of the Judicial Officer in respect of each articles of charge;

(d) the finding of each articles of charge and the reasons therefor.

(19) The Disciplinary authority on receipt of the report from the Enquiring Officer, shall forward a copy of such report to the Judicial Officer intimating the punishment proposed for making representation within 30 (thirty) days from the date of receipt, on the findings of the said report:

Provided that in case the Disciplinary authority does not agree with the findings of the Enquiring Officer, it may record separately the reasons and those reasons shall be communicated to the Judicial Officer along with the report of the Enquiring Officer or otherwise, for filing representation within 30 (thirty) days from the date of the show cause notice.

(20) Upon consideration of the representation, if any, the Disciplinary authority holds the Judicial Officer guilty of one or more of the articles of charge,-

(a) it may impose any of the penalties specified in items (i) and (ii) under clause (b) of rule 10 and shall pass appropriate order; or

(b) it may impose any of the penalties specified in items (iii) to (v) under clause (b) of rule 10 and shall forward the case record along with its recommendation to the Governor for passing appropriate order.

12. Procedure for imposing minor penalties.

(1) No order imposing penalties specified in item (i) to item (iii) under clause (a) of rule 10 shall be passed unless-

(a) the Judicial Officer is informed, in writing, of the proposal to take action against him and of the allegations on which it is proposed to be taken and given an opportunity to make any representation, he may wish to make;

(b) such representation, if any, is taken into consideration by the Disciplinary authority.

(2) ‘Hie record of proceedings in such cases shall include –

(i) a copy of the intimation to the Judicial Officer of the proposal to take action against him,

(ii) a copy of the statement of allegations communicated to him,

(iii) a copy of his representation, if any,

(iv) orders on the case together with reasons therefor.

13. Joint enquiry.

Where two or more Judicial Officers are concerned in any case, the Disciplinary authority may direct that disciplinary action against all of them may be taken in a common proceeding.

Service Law

West Bengal Service Rules

19 Nov 2017 Advocatetanmoy

bengalmap

West Bengal Service Rules is divided into two parts, Part – I & Part – II.

Chapter 1 – Extent of Application

1. Short Title and Commencement
2. To whom the rules apply
3. Interpretations
3A. Relaxations
3B. Abstaining from work
3C. Restoring to Strike
3D. Directions of Government
4. Repeal and Savings

Chapter 2 – Definitions

5. Definitions
6. Rate of Exchange

Chapter 3 – General Conditions of Service

7. Age on first appointment
8. Condonation of an excess in age on first appointment
9. Declaration of age
10-14.Appointment on medical certificate of fitness
15. Whole time at the disposal of Government
16. Limitations in making substantive appointment
17-24.Lien
25. Subscription to Provident Fund and other similar funds
26. Drawal of pay-date of its commencement and end
27. Omitted
28. Charge of office
29. Headquarters term defined
29A. Obligation to stay at headquarters
30-33. Journey beyond the limits of charge
34. Maximum period of continuous absence from duty
34A. Resignation
34B. Discharge after notice

Chapter 4 – Domicile

35-37. Omitted

Chapter 5 – Pay

38. Omitted
39. During a course of instruction or training
40. Of a student to be appointed to Government Service on passing through a course of training
41. Time scale of pay
42. On substantive appointment
42A. Pay fixation on promotion or appointment
42B. Benefit of next higher scale of pay in certain contingency
43. On substantive appointment on reduced scale of pay
44. When the pay of a post is changed
45. Withholding of increments
46-47. Efficiency bar
48-48A. Conditions for counting service for increments
49. Premature increment
49A. Stagnation pay
50. Counting of military service towards increments
51. Pay of police officer on re-enlistment on discharge or resignation
52. Reduction to lower stage in a time scale
53. Reduction to a lower grade or post
54-55. Pay on officiating appointment
55A. Pay on erroneous appointment
55B. Pay on re-employment after retirement
56. Pay of a temporary post
57. Pay of post carrying a pay personal to another Government employee
58. Officiating pay at reduced rates
59. Authorities empowered to sanction officiating appointment
60. Absorption of personal pay in subsequent increases of pay
61. Omitted

Chapter 6 – Fees & Remunerations

62. Circumstances in which granted
63. Conditions of acceptance
64. Sanctioning authorities

Chapter 7 – Combination of Appointments

65. Pay how regulated

Chapter 8 – Deputation out of India

65A. To whom the rules apply
66. Sanctioning authority
67. Date of beginning and end
68. Pay during deputation
69. Omitted

Chapter 9 – Dismissal, Removal & Suspension

70. Termination of service on removal or dismissal
71. Subsistence grant while under suspension
72. Pay and allowances on reinstatement
72A. Pay and allowances on reinstatement when the orders of dismissal, etc., are set aside by a court of law
72B. Pay and allowances on reinstatement by competent authority
73. Omitted
74. Leave during period of suspension or while in prison
74A. Work charged staff

Chapter 10 – Compulsory Retirement

75. For Group A, Group B and Group C service
76. For Group D service
77. Omitted
78. For Government employee holding officiating appointment s
79. Calculation of the date of retirement
79A. Re-employment of Government employees

Chapter 11 – Joining Time

80. Conditions of its grant
81. Period admissible
82. When transfer is not in a new station or does not involve a change of residence
83-84. Omitted
85. Route for calculation
86. Making over charge away from head quarter
87. While in transit from one post to another
88. When leave intervenes
89. On return from leave
90. On transfer during a vacation
91. Extension of joining time
92. When transferred to the control of another Government.
93. Pay or leave salary of Government employees holding substantive appointment.
94. Penalty for exceeding joining time
95. Pay or leave salary of Government employees having no substantive appointment
96. Non-Government employees on temporary appointment under Government

Chapter 12 – Foreign Service

97-101. Conditions of transfer
102-108. Leave and pension contributions
109-110. Leave in foreign service
111. On officiating appointment in a post under Government
112-114. Reversion from foreign service
115. Traveling allowance
116. When an addition is made to permanent staff

Chapter 13 – Service under Local Funds

117. Funds administered by Government
118. Funds not administered by Government

Chapter 14 – Passage from or to India

119, 120, 122. Free Passage – Rules for the grant of
121, 123-143. Omitted

Chapter 15 – Leave

Section – I – General Conditions

144. Extent of application
145. Government employees on foreign service or in deputation
146. When transferred from a service or post to which these rules do not apply
147. Counting of former service on re-employment
148. Omitted
149. Persons re-employed after retirement
150. Grant of special disability leave
151-152. Leave sanctioning authority
153. Cannot be claimed as of right
154. Date of beginning and end
155-157. Combination of holidays with leave and joining time
158. Recall from leave
159. Certificate of fitness to return to duty
160(1). Return from leave before due date
160(2). Absence after expiry of leave
161. Short extensions in cases of overstayals
162. Employment during leave

Section – II – Leave Rules

163-164. Extent of application
165. Leave and leave procedure
166. Definitions
167. Combination of different kinds of leave
168. Leave preparatory to retirement
168A. Leave beyond the date of retirement of quitting service
168B. Cash equivalent of leave salary in case of death in service
168C. Cash equivalent of leave salary in case of retirement on invalidation from service
169. Earned leave for Government employees serving in a department other than a vacation department
170. Calculation of earned leave
171-172. Earned leave for persons serving in vacation department
173. Half pay leave and commuted leave
174. Leave not due
175. Extra ordinary leave
176. Leave salary

Section – III – Ordinary Leave Rules

177-194. Omitted

Section – IV – Special kind of Leave

195-196. Special disability leave
197. Study leave
198. Quarantine leave
199. Maternity leave
200-204. Hospital leave
205. Special sick leave
206. Leave to Survey parties
207. Casual Leave

Section – V – Special Provisions

208. Administrator General and Official Trustees
209. Military Officers in civil employ
210. On deputation out of India
211. Government employees whose duties are not continuous
212. Piece-workers in Government Press
213. On contract appointment
214-216. Law officers
217. Part time Government employees
218. Government employees remunerated by fees
219. During a period of probation or apprenticeship
220. Government employees paid from contingencies

Section – VI – Leave Procedure

221. Leave Procedure

Chapter 16 – Occupation of Government Residences

Appendix 1 Heads of Department
Appendix 2 Members of clerical staff
Appendix 3 Omitted
Appendix 4 Omitted
Appendix 5 Rules for the grant of additional leave to Government employees for the study of Scientific, Technical or similar problems or in order to undertake special courses of instructions
Appendix 6 West Bengal Government Servants Conduct Rules, 1959
Appendix 6A West Bengal Services (Duties, Rights and Obligations of the Govt. Employee)
Appendix 7 Rules prescribing Leave Procedure
Appendix 8 Concordance showing the source of each rule in the West Bengal Service Rule Part – I
Appendix 9 Omitted
Appendix 10 Casual Leave Rules
Appendix 11 Special Casual Leave Rules

CIVIL, Service Law

Union of India and Others Vs. Maj. Gen. Manomoy Ganguly, VSM[SC 2017]

13 Nov 2017 Advocatetanmoy

SERVICE

Keywords:-Promotion Policy-Army-superannuation

We may note that the provision for assessment for promotion to Lt. General is same whether it is Army per se or Armed Medical Corps.

DATE: NOVEMBER 10, 2017

ACTS:

BENCH: (A.K. SIKRI) (ASHOK BHUSHAN)

SUPREME COURT OF INDIA

[Civil Appeal No. 17535 of 2017]

A.K. SIKRI, J.

1. Respondent herein belongs to the Army Medical Corps. He is the Major General and aspires to become Lieutenant General (Lt. Gen.), which is next higher rank in his cadre. First Special Promotion Board (SPB), for this purpose was held on 20th January, 2016 but he was not empanelled to the rank of Lt. Gen. by the said Board. His statutory complaint there against was partially redressed whereby an assessment of the Technical Officer (TO) in his Annual Confidential Report (ACR) of 2014 was expunged.

This entitled him to fresh screening by Review SPB which held its meeting on 21st March, 2017. However, even Review SPB did not empanel him for the promotional rank. After exhausting departmental remedies in the form of statutory complaint etc., the respondent approached the Armed Forces Tribunal (for short, ‘AFT’) and has finally succeeded inasmuch as vide orders dated 2nd September, 2017, passed in O.A. No. 1093 of 2017, the AFT has quashed the proceedings of Review SPB on the ground that it had allotted wrong board marks to the respondent.

Directions are given to convene fresh Review SPB to consider him for promotion to the rank of Lt. Gen. in consonance with the parameters of relevant policies and his changed profile after allotting entitled board marks as stated in the said judgment, and to also restore his seniority. This appeal aims at questioning the correctness of the said judgment of the AFT.

2. Facts which are absolutely essential for disposal of this appeal may be mentioned at this stage:

3. The respondent was commissioned in the Army Medical Corps (AMC) on 3rd March, 1980. He has an outstanding academic record and brilliant service record, for which he has been decorated time and again. This includes GOCin-C”s Commendation in the year 2013, Commendation of Chief of Army Staff in the year 2014 and Vishisht Seva Medal in the 2015. He has earned promotions from time to time, whenever became due and has arisen to the rank of Maj. Gen. He is due for superannuation in this rank on 31st May, 2018.

4. The respondent was considered for promotion to the rank of Lt. Gen. and equivalent by SPB held on 20th October, 2016. However, vide DGAFMS letter dated 1st March, 2016, the respondent was informed that he was not empanelled for promotion. The respondent submitted his statutory complaint dated 30th June, 2016 against his non-empanelment challenging certain assessments in his relevant annual confidential reports.

After seven months, the appellant granted partial redressal to the respondent vide their letter dated 30th January, 2017, by way of expunging the entire assessment of the TO in the respondent’s ACR of 2014 on grounds of inconsistency, and directed that the respondent be considered for promotion by an appropriate Promotion Board. Consequent to the redressal granted to the respondent, his overall ACR profile for consideration before the SPB improved and consequently his merit logically came above that of the last officer empanelled in the SPB held on 20th January, 2016. Since, the redressal was granted, as per the policy of the appellants, the respondent had to be put through a fresh/Review SPB.

5. It is pertinent to note at this stage that as per the Promotion Policy dated 14th January, 2004 as amended by the Government of India letter dated 17th May, 2006, the selection criteria was based on following parameters:

“(a)Average marks of ACR : 90 marks extrapolated out of 90

(b)Total Marks for various : 02 marks Qualifications like MD, DM, M.Ch. etc.

(d) Marks awarded by the members : 02 marks of the Board Total Marks : 95 marks”

6. The composition of the Promotion Board (Medical) is as per the Ministry of Defence letter No. 301/DGAFMS/DG-1X/87-S/D (Med.) dated 8th February, 1988 and for the SPB for promotion to the rank of Lt. Gen. ( & equiv) the board comprises:

Chairman : Chairman Chiefs of Staff Committee

Members : The other two Chiefs of Staff

Member Secretary : DGAFMS

7. As noted above, as per the Promotion Policy, the Board Members are empowered to assess and award the marks. Award of these marks, not exceeding two (2), is based on the overall profile of the officer, exceptional achievements, appointments held, medical category, disciplinary background, field area – difficult area posting. Average of the marks awarded by all the Board Members present, out of two (2), is used to calculate the overall marks.

8. The procedure for selection and promotion which is communicated vide Circular dated 14th January, 2004 issued by the Ministry of Defence (MoD), Government of India and as amended vide letter dated 17th May, 2006 enumerates basis for awarding two marks keeping the following criteria in mind. “Weightage to the Members of the Board: Board Members will have a weightage of two (2) mark for selection of the officers.

The Board Members may award marks not exceeding two (2) based on the overall profile of the officers, exceptional achievements, appointments held, medical category, disciplinary background, field Area-Difficult Area posting. Average of the marks awarded by all the board members present, out of the two (2), will be used to calculate the overall marks.” Thus, it can be discerned that while 93 marks (ACR average 90, qualification marks-02, honour and awards –

01) can be quantified on the basis of relevant records, and need only Civil Appeal No. 17535 of 2017 Page 5 of 16 arithmetical calculations, marks to be assigned by the Board Members out of two(2), depend on the subjective assessment of the Board Members, al beit, after objectively evaluating the overall profile on the parameters laid down in the Promotion Policy.

9. From the aforesaid facts, it is clear that insofar as award of 93 marks, out of 95 marks, is concerned that can be calculated arithmetically on the basis of ACR, academic qualifications as well as military awards and decorations. Discretion is given to the Board to give weightage out of 2 marks and while exercising these discretions the Members of the Board are supposed to keep in mind the overall profile of the concerned officer, exceptional achievements, appointments held, medical category, disciplinary background, field area-difficult area posting.

10. Insofar as the respondent is concerned, he was assigned 87.90 marks on the basis of ACR, i.e., against extrapolated out of 90 marks, when his case was considered for promotion originally by the SPB on 20th January, 2016. However, after redressal of his statutory complaint which resulted in expunging of some adverse remarks in ACR of the year 2014, these extrapolated out of 90 marks stood enhanced to 88.50.

However, in the Review SPB, the Board stuck to the same marks which were awarded by the first Promotion Board. In this manner, though there was some increase in the total marks awarded to the respondent (as a result of increase in marks on account of ACRs). The final marks awarded to him were still below the cut-off marks because of which he was not empanelled for promotion by the Review Board as well. The entire controversy before the AFT, thus, pertained to the award of marks by the Board Members in the Review SPB.

11. The case pleaded by the respondent before the AFT was that one Mr. Sanjeev Chopra, VSM, who was junior to the respondent was empanelled by the SPB on the basis of proceedings held on 20th January, 2016. Total marks obtained by him out of 93 marks (i.e. without Board marks) were more than the respondent at that time. However, with increase of ACR marks of the respondent after his redress, total marks of the respondent out of 93 marks became more than that of Mr. Sanjeev Chopra. But the respondent was still denied promotion by the Review SPB by awarding marginally less marks than Sanjeev Chopra by the Board. It was argued that since total without board marks of the respondent were more than that of Mr. Sanjeev Chopra, there was no reason for the Board to give him lesser weightage while awarding marks out of the marks by the Board.

12. This contention is accepted by the AFT in the following manner: “We have heard the learned counsel for the parties and seen the records. The man point of dispute is the award of Board Marks to the applicant during the Review Special Promotion Board held on 21.03.2017. It is a matter of record that the redressal given to the applicant by the respondent in his Annual Confidential Report for the year 2014 has enhanced his quantified marks from 90.65 to 91.25 and with these revised quantified marks, the applicant jumps above the last empanelled officer of his batch, i.e., Major Gen Sanjeev Chopra whose quantified marks are 91.15.

We find that Maj. Gen Sanjeev Chopra with lower quantified marks in comparison to the applicant has been given 1.70 out of two marks by the Board. We have also been the trend of awarding the Board Marks to all officers considered in this Board which is commensurate with the quantified marks of the candidates. Therefore, the same cannot be denied to the applicant unless it is justified by the Board Members, which has not been done in the Board Proceedings.”

13. In the process, the AFT has also observed that wrong facts were projected to the Board Members inasmuch as in the noting of the Board proceedings it is, inter alia, mentioned that ACR merit of the respondent in Chance one changed from 16th position to 15th position among 18 officers considered for only six vacancies. Noting No. 3 of the Notings in the Board proceedings, giving this information, reads as under:

“3. His CR merit in chance one changed from 16th position to 15th position among 18 officers considered for only six vacancies.”

14. The AFT found that it was factually wrong as the respondent’s revised profile after getting redressal had resulted in elevating his position to 7th place instead of 15th. According to the AFT, had there been correct facts before the Board Members, they may have given higher marks to the respondent. The AFT has even castigated the officers who, according to the AFT, were guilty of furnishing wrong information which caused serious injustice to the respondent and subverted the system.

15. The AFT mentioned that since Mr. Sanjeev Chopra was given 1.70 marks out of the two marks, by the Board, there was no reason to give 1.50 marks to the respondent. Having regard to the fact that in the original SPB meeting, award of these marks commensurate with the quantified marks of the candidate, the respondent is also entitled to 1.70 marks and in this way he would attain above the cut-off marks and more marks than given to Mr. Sanjeev Chopra, who has been promoted as Lt. Gen.

16. Challenging the aforesaid approach of the AFT, Mr. Maninder Singh, learned Additional Solicitor General appearing for the appellant submitted that AFT has committed a grave error Civil Appeal No. 17535 of 2017 Page 9 of 16 in undermining the discretion that is given to the Members of the Board for award of board marks. It is pointed out that these marks are not to be given on the basis of ACRs. On the contrary, it is on the basis of overall profile of the concerned officer which included exceptional achievements, appointments held, medical category, disciplinary background, field area-difficult area posting etc.

In this very hue, it is also contended that it was not permissible for the AFT to determine as to how many marks are to be given to the respondent and by doing so the AFT has usurped the function of the Members of the Board. It is also submitted that Members of the Board are Chiefs of Air force, Army and Navy. It can reasonably be inferred that they would have gone through overall profile of the respondent and still decided to maintain the same marks in the Review SPB which were given to the respondent in the original SPB held in January, 2016. On this basis, the learned ASG also took strong exception to the remarks of the AFT that the three Service Chiefs are hardly expected to examine the records in minute details.

17. There is no dispute insofar as legal propositions advanced by the learned ASG are concerned. Undoubtedly, the Members of the Board are empowered to award marks out of the two marks which are reserved for them. For this purpose, it is not the ACR alone but the entire profile of an officer which is to be looked into. Insofar as, marks for ACR are concerned these have already been awarded under the head ‘average marks of ACR extrapolated out of 90’. It shows that significant importance is attached to the ACRs inasmuch as 90 marks out of 95 marks are to be assigned on the basis of ACRs.

Therefore, it cannot be disputed that while awarding marks out of the two marks reserved for the Members of the Board, they can examine the overall profile of the officer and are not supposed to restrict it to the ACR alone. It also needs no elaboration that Board Members are the three Chiefs of Services and it can very well be presumed that they would assess an officer in an objective manner. Indubitably, higher degree of trust can be reposed in them and their assessment is not to be interdicted unless very weighty and overwhelming material is produced warranting interference while undertaking judicial review of such an exercise.

18. We may mention here that the appellants had placed strong reliance upon the earlier judgment of the AFT dated 16th January, 2015 rendered in OA No. 120 of 2014 entitled Major General S.K. Chakravorty v. Union of India and Others. In that case, the AFT had held that the allocation of system of marks, i.e., award of marks by the Board Members out of two (02) marks allotted to the Board, is based on value judgment. In the impugned judgment, the AFT distinguished the said judgment with the remarks that that case was not in respect of the Armed Medical Corps wherein the assessment is based on quantified check marks.

This basis of distinguishing the judgment in S.K. Chakravorty is clearly erroneous. We may note that the provision for assessment for promotion to Lt. General is same whether it is Army per se or Armed Medical Corps. The principle enunciated in S.K. Chakravorty is based on the judgments of this Court in Air Vice Marshal S.L. Chabbra, VSM (Retd.) v. Union of India & Anr.1, Major General I.P.S. Dewan v. Union of India & Ors.2, Dalpat Abasaheb Solunke & Ors. v. Dr. B.S. Mahajan & Ors.3, and Surinder Shukla v. Union of India & Ors.

19. Having said that, insofar as the present case is concerned, we find it difficult to disagree with the ultimate conclusion arrived at by the AFT in the facts of this case, even if some of the observations of the AFT may not be correct. Most important feature which is noted by the AFT and could not be disputed by the appellant is the manner in which exercise was undertaken while holding SPB meeting on 20th January, 2016. Even when the Board Members were entitled to give marks to the candidates on the basis of overall profile that was not done. On the contrary, the marks given to those officers who were considered in that SPB, were strictly on the basis of marks obtained by them out of 93 marks.

20. That becomes clear from the record produced by the learned ASG for our perusal at the time of hearing. This is the case in respect of all officers, without any exception. The AFT is right in observing that in the meeting held on 20th January, 2016 Board Marks to all officers who are considered commensurate with the quantified marks of the candidates. Thus, the Board Members adopted the criteria of looking into the quantified marks as the yardstick for assessing overall profile.

21. In the original SPB meeting, Major General Sanjeev Chopra was awarded 1.70 out of 2 marks whereas the respondent was awarded 1.50 marks. Lesser marks given to the respondent were because of the reason that marks awarded to him out of 93 were lesser than Mr. Sanjeev Chopra. Result of the redressal was that the marks of the respondent became higher than Mr. Sanjeev Chopra which necessitated Review SPB. This Review SPB meeting has to be on the same standards which were adopted in original SPB meeting. It has to be on the assumption as if case of the respondent is considered in the original SPB, but with revised profile. In the SPB held on 20th January, 2016, had the revised marks of the respondent available, which were more than the quantified marks of Sanjeev Chopra, the respondent would have certainly got 1.70 out of 2 marks by the Board.

It is stated at the cost of repetition that was the criteria adopted by the Members of the Board itself viz. awarding the marks (out of 2) in line with the quantified marks. Having not undertaken the independent exercise of looking into the “overall profile” in the SPB held on 20th January, 2016 and instead assigning the marks to all the officers out of 2 marks, on the basis of quantified marks of the candidates which they had received out of 93 marks by treating the same as “overall profile”, when it comes to Review SPB the appellant is supposed to stick to the same criteria. Only that would show fairness in approach, which would also be in conformity with the principles of equality enshrined in Article 14 of the Constitution. It is because of the reason that Review SPB is nothing but extension of original SPB, wherein the respondent was supposed to be considered on the same parameters as if he was participating in promotion process undertaken in original SPB.

22. Other aspect which is highlighted by the AFT in the impugned judgment is equally significant, viz., Noting No. 3 of the Board proceedings was factually incorrect. As pointed out above, as per Noting No.3, the respondent’s CR merit in chance one changed from 16th position to 15th position among 18 officers considered for only 6 vacancies. This Noting gave the impression that even after the redress, the chances of promotion of the respondent hardly improved. On the contrary, fact is that after the redress, position of the respondent had jumped from 16th to 7th. Another significant aspect which was omitted was that with this jump, his quantified check marks (i.e. out of 93) became more than Major General Sanjeev Chopra, who was promoted after his assessment in the original SPB even when he was junior to the respondent. But for this error, there was a possibility of different outcome even on value judgment of the respondent by the Board Members.

23. For these reasons, we are not interfering with the directions given by the AFT. We make it clear that in any future selections, it would always be open to the Members of the Board to award the marks (out of 2 marks assigned for this purpose) keeping in view the overall profile of the officers as per Promotion Policy dated 14th January, 2004 and as amended vide letter dated 17th May, 2006.

24. This appeal is, accordingly, dismissed with the direction to the appellant to take further steps, without loss of time, as stated by the AFT in the impugned judgment.

CIVIL, Service Law

Shobha Nelson Vs. State of Madhya Pradesh & Ors[ SC 2017]- service

4 Nov 2017 Advocatetanmoy

KEYWORDS:- Unauthorised absence

SC INDEx

Appellants had not taken the requisite permission from the competent authority before going abroad, no steps were taken by the Respondent to treat the period spent by them in Zanzibar as ‘unauthorised absence’. The Respondent also did not proceed to initiate a departmental inquiry against the Appellants for the alleged delinquency. There is no interruption of their status as civil servants. Their services were not terminated at any time.

[CIVIL APPEAL No. 17425 of 2017 arising out of Special Leave Petition (Civil) No.18737 of 2007]*

BENCH: [S. A. BOBDE] [L. NAGESWARA RAO]

ACTS:

DATE: October 31, 2017

L. NAGESWARA RAO, J.

1. Leave granted. Dr. Shobha Nelson and Dr. Sudhir Kumar Nelson went to Zanzibar in 1975, while they were in Government service of the State of Madhya Pradesh. Though they had submitted a joining report on 13.08.1991, they were allowed to join back in Government service only from 03.01.1996. Aggrieved, Dr. Shobha Nelson and her husband Dr. S.K. Nelson approached the High Court of Madhya Pradesh at Jabalpur. The Writ Petitions filed by them were disposed of by the High Court with a direction to the Respondents therein to accept the joining report of the writ petitioners w.e.f. 13.08.1991 with consequential benefits.

The State of Madhya Pradesh filed Writ Appeals which were allowed in part by a Division Bench of the High Court. The Division Bench held that the Appellants i.e. Dr. Shobha Nelson and Dr. S.K. Nelson shall be deemed to be in service w.e.f. 03.01.1996 and entitled to 20 per cent of their salary from 03.01.1996 till the date they attained their superannuation. Dr. Shobha Nelson and Dr. S.K. Nelson filed Civil Appeals assailing the legality of the said judgment of the High Court. The State of Madhya Pradesh also filed two Civil Appeals having been aggrieved by the same judgment.

2. Dr. S.K. Nelson was a Surgeon in the Cancer Hospital, Medical College, Jabalpur. Dr. Shobha Nelson, his wife was a Lecturer in Gynaecology, Cancer Hospital, Medical College, Jabalpur. For the sake of convenience Dr. Shobha Nelson and Dr. S.K. Nelson will be referred to as the Appellants and the State of Madhya Pradesh as the Respondent.

3. The Government of Madhya Pradesh informed the Appellants 2 that they have been selected by the Zanzibar Government to serve as Medical Officers and they will be permitted to go to Zanzibar on Foreign Service in public interest. They were also told that their resignation from State Government service during their stay abroad would not be accepted. The Appellants were informed that they would be permitted for the foreign assignment after the completion of required formalities. The Respondent communicated their unwillingness to release the Appellants for the foreign assignment to the Central Government on 15.04.1975.

The Appellants left India and started working in Zanzibar from May, 1975. According to the Appellants, they returned to India and requested the Respondent to give them posting orders in 1980. As they were not given posting orders by the Respondent they went back to Zanzibar. They returned to India and requested the Respondent to permit them to join back in service. As their request was not acceded to, they approached the Madhya Pradesh Administrative Tribunal.

An interim order was passed by the Tribunal on 13.03.1991 directing the Respondent to issue posting orders to the Appellants. Due to the non compliance of the direction in the order dated 13.03.1991 of the Tribunal which was reiterated in another order dated 28.10.1991, the Appellants filed a contempt petition before the Tribunal.

4. By an order dated 03.01.1996, the Under Secretary, Medical Education Department, Government of Madhya Pradesh permitted the Appellants to join their duties in their original posts. It was mentioned in the said proceeding that an inquiry will be conducted to find out whether the Appellants took prior permission before leaving for Zanzibar on deputation. In case the Appellants had gone abroad without seeking permission from the Government of Madhya Pradesh, the period spent by them in Zanzibar will be treated as ‘period of absence’ and a departmental inquiry would be initiated against them for going to a foreign country without taking permission from the competent authority.

5. The Director of Health Services, Madhya Pradesh conducted an inquiry and held that the Appellants did not seek permission before going on deputation to a foreign country. The Appellants filed Writ Petitions 15094 of 2003 and 15095 of 2003 seeking a direction to the Respondent to permit them to join w.e.f. 13.08.1991 with all consequential benefits. They also filed Writ Petition 16754 of 2003 in which they sought for a relief of quashing the proceeding ordered on 03.01.1996. By a judgment dated 15.12.2004, the High Court directed the Respondent to accept the joining of the Appellants w.e.f. 13.08.1991.

There was a further direction that the Appellants would be considered for promotion to higher post if they were entitled. The finding in the inquiry conducted by the Director of Medical Health that the Appellants did not obtain permission before leaving for deputation to Zanzibar was upheld. The Respondent challenged the judgment by filing Writ Appeals. A Division Bench of the High Court held that the direction given by the learned Judge to permit the Appellants to join w.e.f. 13.08.1991 was erroneous.

The Division Bench further held the Respondent responsible for not issuing posting orders even after the order dated 03.01.1996 was passed. It was also directed that the Appellants shall be deemed to be in service from 03.01.1996. The Appellants were found entitled for only 20 per cent of the salary w.e.f. 03.01.1996 till their dates of superannuation. The Appellants as well as the Respondent state have filed Civil Appeals assailing the judgments of the Division Bench of the High Court.

6. The undisputed facts of this case are that the Appellants were working as Doctors in the service of the Government of Madhya Pradesh. They went and worked in Zanzibar from 1975 to 1991. There is a finding recorded in the inquiry conducted by the Director of Medical Health that they left for Zanzibar without seeking permission. The said finding was confirmed by the Single Judge of the High Court which was not challenged by the Appellants. The Division Bench affirmed the said finding.

It is clear that the Appellants submitted their joining report in 1991. The interim orders passed by the Administrative Tribunal on 13.03.1991 and 28.10.1991 whereby the Respondent were directed to issue posting orders to the Appellants were not implemented. The Appellants had to resort to filing a contempt petition. Ultimately an order was passed by the Respondent directing the Appellants to join duty w.e.f. 03.08.1996.

7. The fact remains that actual posting orders were not issued to the Appellants. We agree with the Division Bench that the Respondent should be held responsible for not issuing actual posting orders to the Appellants. We see no reason as to why the Appellants would not have joined if they were given posting orders.

8. The order dated 03.08.1996 by which the Appellants were directed to join was made subject to certain conditions. A fact finding inquiry was directed to be conducted to find out whether the Appellants had obtained permission before going abroad on deputation. If the Appellants were found guilty of not taking permission, the period spent by them in Zanzibar would be treated as ‘period of absence’. A departmental inquiry was also contemplated in case the Appellants were found to have left India without taking permission from the competent authority.

Though the Director of Health Service by an order dated 22.11.2000 found that the Appellants had not taken the requisite permission from the competent authority before going abroad, no steps were taken by the Respondent to treat the period spent by them in Zanzibar as ‘unauthorised absence’. The Respondent also did not proceed to initiate a departmental inquiry against the Appellants for the alleged delinquency.

9. Dr. Shobha Nelson attained the age of superannuation on 18.05.2002 and is aged 74 years now. Dr. S.K. Nelson would have retired from service on attaining the age of superannuation on 27.11.2000. Dr. S.K. Nelson died on 17.11.2014 and the application filed for substitution to bring his LRs on record was allowed by us on 07.04.2017.

10. We are afraid that we cannot approve the findings of the Division Bench of the High Court that the Appellants are entitled to be deemed in service only from 03.01.1996. There is no interruption of their status as civil servants. Their services were not terminated at any time. We approve the view of the learned Single Judge that the Appellants should be given the benefit of joining back w.e.f. 13.08.1991. As stated supra, the Respondent has to be held responsible for not giving the posting orders to the Appellants in spite of interim orders passed by the Tribunal. It appears that the order dated 03.01.1996 was passed only because of the contempt petition filed by the Appellants in the Tribunal. The Division Bench did not assign any reason as to why the direction given by the learned Single Judge that the Appellants were entitled for the relief from 13.08.1991 had to be interfered with.

11. Having decided that the Appellants are entitled to the service from 13.08.1991, the point that is to be determined is whether they should be treated to be in service even during period of their absence between 1975 to1991. In view of the finding that they did not take permission before going to Zanzibar in 1975, the normal course would have been to permit the Respondent to proceed with the departmental inquiry as contemplated in the order dated 8 03.01.1996.

But taking note of the fact of retirement of both the Appellants and death of Dr. S.K. Nelson we do not see any useful purpose being served by directing any inquiry at this stage. We hold that the period from 1975 to 1991 spent by the Appellants in Zanzibar shall be treated as duty for the purpose of computation of pension only. They shall not be entitled for any salary or allowance for that period. The Appellants shall be treated to have joined back in service on 13.08.1991. They shall be entitled for salary and other benefits to which they are entitled from 13.08.1991 till the date of their superannuation.

12. The Appeals are disposed of accordingly.

New Delhi,

October 31, 2017.

[CIVIL APPEAL No. 17426 of 2017 arising out of Special Leave Petition (Civil) No.19004 of 2007] [CIVIL APPEAL No. 17428 of 2017 arising out of Special Leave Petition (Civil) No.23332 of 2007] [CIVIL APPEAL No. 17427 of 2017 arising out of Special Leave Petition (Civil) No.21415 of 2007]

CIVIL, Service Law

Union of India & Ors. Vs. Shiba Prasad Mitra[SC 2017] SERVICE

1 Nov 2017 Advocatetanmoy

KEYWORD- Compulsory Retirement-reinstatement-consequantal benefit

SC INDEx

The respondent shall be deemed to have been reinstated as per the impugned order, but shall be deemed to have compulsorily retired from service as on today. All the consequential benefits arising out of such reinstatement and compulsory retirement shall be disbursed to the respondent within a period of three months from today.

SUPREME COURT OF INDIA

NON-REPORTABLE

[Civil Appeal No. 15444 of 2017 arising out of S.L.P. (Civil) No. 19403 of 2017]

BENCH:- (KURIAN JOSEPH) (R. BANUMATHI)

KURIAN, J.:

1. Leave granted.

2. Appellants are before this Court aggrieved by the impugned Judgment dated 10.08.2016 by the High Court. The High Court upheld the order passed by the Central Administrative Tribunal, Calcutta to reinstate the respondent in service with back wages from the date of termination. In the nature of the order we propose to pass, it is not necessary to go into the factual matrix.

3. Thanks to the gracious cooperation extended by the learned Solicitor General and also by the learned Counsel appearing for the respondent, we are in a position to dispose of this appeal without going into the merits of the matter.

4. Though several contentions have been taken by the parties, as agreed, the respondent shall be deemed to have been reinstated as per the impugned order, but shall be deemed to have compulsorily retired from service as on today. All the consequential benefits arising out of such reinstatement and compulsory retirement shall be disbursed to the respondent within a period of three months from today.

5. With the above observations and directions, this appeal is disposed of.

New Delhi;

September 22, 2017

CIVIL, Service Law

Abdul Hamid & Ors. Vs. Union of India & Ors WITH Girdhar Gopal Sharma Vs. A.K. Mittal & Ors.[SC 2017]- Service

1 Nov 2017 Advocatetanmoy

Keywords-age relaxation-apprentice -fresh face substitutes

SC INDEx

The word “preference” does not mean that the Railways trained apprentice will have an exclusive right to the exclusion of all others to be considered for appointment. Both the Tribunal and the High Court were justified in deciding this issue against the Railways and in favour of the original applicants.

SUPREME COURT OF INDIA

BENCH:- (MADAN B. LOKUR) (DEEPAK GUPTA)

[Civil Appeal No(S). 5027-5029 of 2012]

[Contempt Petition (C) No(S). 291-293 of 2016 in Civil Appeal No(S). 5027-5029 of 2012]

Deepak Gupta, J.

1. Three original applications being O.A. No. 238 of 2004, O.A. No. 264 of 2004 and O.A. No. 365 of 2004 were filed before the Jodhpur Bench of the Central Administrative Tribunal (for short ‘the Tribunal’). There were in all 14 original applicants. The dispute raised in these original applications was that in the Bikaner Division of the Railways, the Divisional Manager, while issuing advertisement for filling up the posts of ‘fresh face substitutes’ in Group-D in Bikaner Division, had directed that only those candidates who had done their apprenticeship training with the Railways would be eligible for appointment.

The contention of the original applicants was that this was violative of the directions given by the Railways and while making similar recruitments in all other parts of the country, though preference was given to those who had done there apprenticeship with the Railways, the selection was not exclusively limited to such candidates and all persons who were otherwise qualified, were entitled to apply for being selected. These original applications were filed before selection was made and after the selection process had been initiated.

2. The stand of the Railways before the Tribunal was that fresh face substitutes are engaged only as a time gap arrangement purely as a temporary measure till regular selection takes place and, therefore, the Railways was well within its jurisdiction to limit the source of recruitment to candidates who had undergone apprenticeship with the Railways. The main issue raised was that since only casual labourers were being engaged, keeping in view the local needs, preference was given to local candidates.

3. Admittedly, the 14 original applicants were course completed act apprentices, i.e. they fulfilled the eligibility criteria. However, their applications were not considered since they had not undergone apprenticeship training under the Railways. The Tribunal found that the Railways had issued instructions from time to time and the term “fresh face substitutes” referred to “engagement of persons in railway establishment against posts falling vacant because of regular employee being absent or otherwise and the post could not be kept vacant”. However, instructions had been issued that these engagements should be made by way of exception purely on temporary basis limited to the posts which cannot be kept vacant until regular posts are filled. The fact, however, remains that thousands of persons were given appointment as fresh face substitutes.

4. The Circular dated 21st June, 2004 provides that fresh face substitutes can be engaged from course completed act apprentices. These instructions do not envisage that the course completed act apprentices should have done their apprenticeship only under the Railways establishments. No rule or instructions of the Railways have been brought on record to show that the Railways had taken a decision to limit the field of choice to those course completed act apprentices who had done their apprenticeship training with the Railway establishments only.

It was only in the Bikaner Division that the General Manager issued a memo on 30th August, 2004 that only those candidates would be considered who had completed the apprenticeship training with the Railways. The Tribunal vide common order dated 24th February, 2005 held that this memo violates Article 14 and 16 of the Constitution of India in so far as it discriminates against those qualified persons who had not done their apprenticeship training with the Railways and denies them the right of equal opportunity of employment. The Tribunal quashed the memo dated 30th August, 2004 and all subsequent actions thereto.

5. The Railways filed writ petitions being Civil Writ Petition Nos.4272-4274 of 2005. These matters were listed on 3rd August, 2005 before the High Court on which date notice was issued and, in the meantime, the order of the Tribunal, dated 24th February, 2005 was stayed.

6. It appears that as a result of the stay, the appellants before us were selected. Some were selected in the year 2005 and some in the year 2006. On 22nd August, 2005 after hearing the parties, the High Court passed the following order: “Heard learned counsel for the parties. The order dated 3.08.2005 passed by this Court is modified to the extent that the selection made by the respondents pursuant to the order of the Tribunal Annexure 1 dated 24.02.2005, but the same shall be subjected to the final decision of the instant petition. Let the writ petition itself be posted for hearing on 2nd September, 2005.”

7. It will be pertinent to mention that thereafter a clarification was sought for and the High Court on 05.01.2006 passed the following order:- “It is pointed out by the learned counsel for the petitioners that there is some confusion with respect to order dated 22.8.2005. We make it clear that if any selections are made pursuant to the policy decision, then the same shall be subject to final decision of the instant writ petition. Let the writ petition be posted for hearing in the 2nd week of February, 2006.” Perusal of the aforesaid order leaves no manner of doubt that the appointment of the appellants herein was subject to the final decision of the writ petitions.

8. It is thus apparent that the appointment of the appellants was subject to the final result of the writ petitions. The writ petitions were finally dismissed on 5th December, 2007 but the persons appointed were allowed to continue for four months. The Railway administration filed a review petition but the same appears to have been rejected. The Railways accepted the order and judgment of the High Court and did not pursue the matter further.

Thereafter, the Railways vide order dated 25.08.2008 discontinued/terminated the services of the fresh face substitutes/appellants. It is only then that the appellants filed the special leave petitions, which they were permitted to do. Leave was granted to file these appeals. Applications for intervention have also been filed by more than 300 other course completed qualified persons who have undergone apprenticeship training under the Railways.

9. The first ground raised on behalf of the appellants is that since the fresh face substitutes/apprentices are appointed temporarily against short term vacancies, the Railways was well within its jurisdiction to limit the field of choice to those candidates who had undergone apprenticeship training with the Railways. In the alternative, it is submitted by Mr. R. Venkatramni, learned senior counsel appearing for the appellants that the appellants who have been working for more than 10 years, they should now be permitted to continue and, in this regard, he has relied upon a large number of circulars issued from time to time by the railway administration whereby fresh face substitutes have been regularized.

10. It is apparent that there is a policy of the Railways to grant regularization to these fresh face substitutes. We need not refer to all the circulars issued in this behalf, but a perusal of the documents especially those filed as additional documents clearly show that the Railways has a policy of regularizing these fresh face substitutes. This, in our opinion, is a clear indicator that while making appointment of fresh face substitutes, the field of choice should be wide and all citizens who are qualified and eligible should be given a chance to take part in the 9 selection process.

Though these appointments may be termed as short term appointments, the facts placed on record reveal that thousands of fresh face substitutes have been regularized and have become employees of the Railways because of the policy of the Railways. It is, therefore, imperative that while appointing fresh face substitutes, a transparent system of appointment is followed. It would be much better if the Railways follows the regular system of appointment rather than making appointments on ad hoc basis of fresh face substitutes.

However, as and when exigencies of service require that fresh face substitutes have to be appointed, then also the field of choice cannot be limited only to those who have undergone their apprenticeship training with the Railways since that would patently violate Article 14 and 16 of the Constitution of India depriving those who have not undergone apprenticeship training with the Railways of an equal opportunity for applying for these posts.

11. Reliance has been placed by learned counsel appearing for the Railways trained apprentices on the judgment of this Court passed in the case of U.P. State Road Transport Corporation and Another v. U.P. Parivahan Nigam Shishukhs Berozgar Sangh and Others,

1. In Para 12 of the judgement it has been held that all other things being equal, the trained apprentices should be given preference upon direct apprentices. This judgment does not help the appellants at all. What has been held is that if the non-Railway trained apprentice is equal to the Railways trained apprentice on merit, then preference can be given to the Railways trained apprentice. The word “preference” does not mean that the Railways trained apprentice will have an exclusive right to the exclusion of all others to be considered for appointment. Both the Tribunal and the High Court were justified in deciding this issue against the Railways and in favour of the original applicants.

12. As far as the second issue raised by Mr. R. Venkatramni, learned senior counsel is concerned, we may have sympathy with the appellants but we cannot direct that they be continued in service. The courts below held that they have been employed in violation of the general directions issued by the Railways from time to time wherein there is no restriction of limiting the field of choice to Railways trained apprenticeship. It is only in Bikaner Division of the Railways that this limitation was placed.

13. The appellants were well aware that their appointments made when the original applications were pending before the Tribunal or when the writ petitions were pending before the High Court were subject to the result of the litigation. They did not choose to file any application for intervention before the High Court. After the Railways lost in the High Court and did not carry the matter further, they approached this Court. They were granted stay and have been continuing on the basis of the stay order. They knew that their fate depended upon the result of the litigation. Once their appeal is dismissed they cannot be permitted to be continued in employment only because they have been permitted to continue due to the interim orders.

14. At this stage, we may note that the learned Solicitor General had informed us that fresh regular recruitment for Group-D posts and other posts in Bikaner Division of the Railways is under process. On 24th August, 2017, original applicants were granted age relaxation for a period of 13 years and they were permitted to appear in the selection process wherein their cases would be considered on merit. Mr. R. Venkatramni, learned senior counsel had sought time to take instructions from his clients in this regard. He now submits that his clients, having served for more than 10 years, are not in a position to appear in the test.

We are concerned with a large number of appellants and in case the process for selection is still on, we direct the Railways to give relaxation of age to the appellants by deducting the period of service for which they have worked and they may also be considered at par with the original applicants by allowing them to take part in the selection process. In case the appellants or any of them do not take part in the selection process, they will not be given relaxation of age in any further selection process. As far as the intervenors are concerned, no relief can be granted to them.

15. In view of the above, we do not find any merit in these appeals which are dismissed accordingly.

16. Applications for substitution to bring on record the legal representatives of the deceased Appellant Nos. 46, 50, 74, 94, 156, 167, 254, 289 and 304 and condonation of delay in filing the substitution applications and setting aside abatement are allowed. Applications for impleadment are allowed to the extent that the applicants are permitted to intervene in the matter. All other pending applications stand disposed of.

[Contempt Petition (C) No(S). 291-293 of 2016]

17. In view of the fact that the process of selection is stated to have started, the contempt petitions are dismissed.

New Delhi

September 20, 2017

CIVIL, Service Law

Sunaina Sharma & Ors. Vs. The State of Jammu and Kashmir & Ors[SC 2017]-Service

29 Oct 2017 Advocatetanmoy

Keywords- Retrospective Promotion-Direct recruitment-Seniority

SC INDEx

Seniority should be reckoned from the actual date of appointment.
Retrospective promotion to a particular group can violate Article 14 and 16 of the Constitution of India. Even if the Rules enable the State to make retrospective promotion, such promotion cannot be granted at the cost of some other group. Therefore, the only reasonable interpretation can be that the promotees can get promotion from an anterior date only if they have worked against the said post even if it be on temporary or officiating, or ad-hoc basis etc.

SUPREME COURT OF INDIA

Sunaina Sharma & Ors. Vs. State of Jammu and Kashmir & Ors.

[Civil Appeal No(S) 4594-4595 of 2017] [Civil Appeal No(S) 4596-4597 of 2017]

ACT: J & K Excise & Taxation (Gazetted) Recruitment Rules, 1977-Rule 23 of the J & K Civil Service (CCA Rules), 1956

BENCH: Madan B. Lokur and Deepak Gupta

Deepak Gupta, J.

1. The issue that arises for determination in these appeals is whether the private respondents, who are promotee Excise and Taxation Officers (ETOs for short) could be granted retrospective promotion from the dates when the vacancies occurred in the promotion quota.

2. The undisputed facts are that appointment to the post of ETO under the J & K Excise & Taxation (Gazetted) Recruitment Rules, 1977 (for short the ‘Excise Rules’) is made from two sources, promotion and direct recruitment. The appellants are the original writ petitioners. They are direct recruits who were appointed as ETOs on the basis of J & K Combined Competitive Examination. They were issued appointment letters on 23.07.2004. The private respondents are promotees who were promoted to the post of ETOs.

The J & K Public Service Commission proposed and cleared the names of the private respondents for promotion on 05.10.2004 and the private respondents were promoted as ETOs on the recommendation of the Public Service Commission on 06.12.2004. It is not disputed that the direct recruits and promotees have been promoted within their quota and there is no violation of quota. However, the private respondents were given retrospective promotion/appointment in the cadre of ETOs on various dates between 01.05.2002 and 01.01.2004. Resultantly, they were deemed to have been appointed as ETOs prior to the appellants who were appointed on 23.07.2004. As such the private respondents were placed senior to the appellants.

3. A seniority list of ETOs was issued on 03.01.2006 in which the promotee/respondents were shown senior to the appellants. The appellants filed a writ petition before the J & K High Court challenging the grant of retrospective appointment to the private respondents. It was urged by the appellants that the private respondents were not even born in the cadre of ETOs when the appellants were appointed as ETOs on 23.07.2004. It was further averred that the private respondents, i.e., promotees had never worked as ETOs either on officiating or stop-gap basis and, in fact, the promotees had worked under the direct recruits for a few months before their promotion.

It was further submitted that the post of ETO was in a separate service being a gazetted service and, therefore, the service rendered in the lower post could not be equated with the service rendered in the higher post. The stand of the contesting respondents was that in terms of Rule 23 of the J & K Civil Service (CCA Rules), 1956 (hereinafter referred to as Civil Service Rules), seniority could be assigned to the promotees from the date the vacancy occurred in the quota of promotees. The learned Single Judge held that retrospective promotions could not be granted, and allowed the writ petition.

Two Letters Patent Appeals were filed which were disposed of by a common judgment of 06.03.2014 and the Division Bench held that in terms of Rules 23 and 24 of the Civil Service Rules the promotees were entitled to get retrospective promotion. The Division Bench placed reliance on the judgment of this Court in Suraj Prakash Gupta and Others vs. State of J & K and Others1 to come to the conclusion that promotees were entitled to promotion from a date anterior to their appointment. This judgment is under challenge in these appeals.

4. It may not be necessary to refer to the J & K Excise Rules in detail. Rule 9 of the Excise Rules provides that a person appointed to the service whether by direct recruitment or by selection shall be placed on probation for a period of two years. The explanation to Rule 9 provides that appointment on probation will be made against substantive vacancies only. All other appointments will be on trial. It has been further provided that any period of officiating appointment shall be reckoned as period spent on probation when a person appointed on trial is formally appointed to the service.

The explanation reads as under :-

“Explanation -Appointments on probation will be made against substantive vacancies only. All other appointments will be on trial; Provided that any period of officiating appointment shall be reckoned as period spent on probation when a person appointed on trial is formally appointed to the service.”

Rule 13 of the Excise Rules provides that seniority of members of the service shall be regulated under the Civil Service Rules.

Rule 23 of the Civil Service Rules, reads as follows :-

“23. Appointments of members

(1) A probationer shall, if a substantive vacancy in the permanent cadre of the category for which he was selected exists, be appointed to the service at the earliest possible opportunity in order of seniority, and if such vacancy existed from a date previous to the issue of the order of appointment, he may be so appointed from the date of retrospective effect from such date or, as the case may be, from such subsequent date from which he was continuously on duty as a member of the service.

(2) Where recruitment to any service shall normally be both by direct recruitment and by transfer or promotion, the provision of sub rule (1) shall apply separately as regards :

(a) vacancies against which person have recruited direct; and

(b) other vacancies.

(3) No probationer shall be required to produce a medical certificate of physical fitness before appointment as member of service: Provided that in case of a probationer who is not a member of any other service, the appointing authority may, if it has reason to believe that the probationers physical fitness has seriously deteriorated since he satisfied the authority under clause (c) of rule 17 require him to undergo a fresh medical examination. If on such examination he is found to be physically unfit for the service for which he was selected the appointing authority shall discharge him from the service.

(4) No person shall at the same time be a member of more than one service.” Rule 24 lays down that seniority shall be determined by the date of first appointment to such service, class, category or grade, as the case may be and reads as follows :-

“24. Seniority –

(1) The seniority of a person who is subject to these rules has reference to the service, class, category or grade with reference to which the question has arisen. Such seniority shall be determined by the date of his first appointment to such service, class category or grade as the case may be.

Note:- The rule in this clause will not affect the seniority on the date on which these rules come into force of a member of any service, class, category or grade as fixed in accordance with the rules and orders in force before the date on which these rules come into force.

Interpretation – The words ‘date of first appointment’ occurring in the above rule will mean the date of first substantive appointment, meaning thereby the date of permanent appointment or the date of first appointment on probation on a clear vacancy, confirmation in the latter case being subject to good work and conduct and/or passing of any examination or examinations and/or tests:

Provided that the inter se-seniority of two or more persons appointed to the same service, class, category or grade simultaneously, will, notwithstanding the fact that they may assume the duties of their appointments on different 8 dates by reason of being posted to different stations, be determined:

(a) In the case of those promoted by their relative seniority in the lower service, class, category or grade;

(b) In the case of those recruited direct except those who do not join their duties when vacancies are offered to them according to the positions attained by and assigned to them in order of merit at the time of competitive examination or on the basis of merit ability and physical fitness etc. in case no such examination is held for the purpose of making selections;

(c) As between those promoted and recruited direct by order in which appointments have to be allocated for promotion and direct recruitment as prescribed by the rules.” The interpretation of these Rules is the subject matter of this case.

5. The judgment in Suraj Prakash Gupta (supra) has been relied upon by both the sides and has been referred to by both the learned Single Judge and the Division Bench of the High Court. In this case also, Rule 23 and 24 of the Civil Services Rules were in consideration. Therefore, it is necessary to refer to this case in detail. The facts of Suraj Prakash Gupta (supra) case are that as per the then existing rules 20% of the posts of Assistant Engineers had to be filled by direct recruitment, 60% by promotion from Junior Engineers having degree in Engineering or equivalent qualification and 20% from diploma holders with 10 years’ service.

The Government of Jammu and Kashmir upgraded a large number of posts of Assistant Engineers and redesignated them as Assistant Executive Engineers. Therefore, a large number of promotions were made on ad hoc basis, initially for a period of six months. As per the rules, the stop gap/ad hoc arrangement could be made by the State only for six months without consulting the Commission and if such arrangement was to continue beyond six months, it was necessary to consult the Commission. The State, in violation of the rules, continued the ad hoc promotions for a long time. Direct recruitment to the post of A.E. prior to 1997 was done in the year 1984.

Thereafter, no direct recruitment was done. As a result, the promotees worked on ad hoc basis against a large number of higher posts in excess of their quota. The State after a gap of almost 4 years made a reference to the Commission to fill up 10% of the posts by direct recruitment [as against 20% provided in the rules]. The Commission issued advertisements in this regard on 03.12.1987. The finally selected direct recruits applied for the posts and appeared in the test. However, the Commission did not make any recommendations for almost 4 years.

Thereafter, the candidates who were successful in the written test were interviewed during 1993-94 and the list of selected candidates of 10% of the posts was sent by the Commission to the State Government. Even then, the appointments were not made and some persons had to approach the High Court of Jammu and Kashmir, which gave directions on 22.02.1994. It was only after issuance of such directions that some of the direct recruits were offered appointment on different dates in the year 1994 and some direct recruits were offered appointment much later. The direct recruits filed writ petitions challenging the ad hoc promotion of Assistant Engineers, made by the Government without consulting the Commission and continued for a period of six months.

According to the direct recruits, the service rendered by the promotees became non11 est and void and could not be recognised. They sought quashing of the seniority list and also contended that the seniority was in breach of the quota. The promotee officers filed writ petitions and contended that they should be granted promotion from the date when they were working irrespective of the quota. The J & K Government constituted a high level committee to look into the matter and the committee recommended that the seniority of both the direct recruits and the promotees were to be granted by placing them in the vacancies reserved for them in their respective quotas.

The committee also recommended that the ad hoc stop-gap appointees, who had continued in violation of the rules, could not be granted any benefit. Despite this recommendation of the committee, the State Government in relaxation of the rules, regularised the promotees from anterior dates. The direct recruits challenged this order. The High Court held that the appointment could not be made to the promotional posts without consulting the Commission. The High Court also held that the promotees whose promotions were in excess of the quota had to be pushed down and those promotees had to be fitted in the subsequent vacancies in their quota in the later years.

The High Court also held that the ad hoc appointment can only be made initially for 6 months and where the ad hoc service had continued beyond this period without consultation with the Commission, the promotees were not entitled to seniority. It was held that an ad hoc promotee could not be treated to be a member of the service. The High Court also held that according to rule 24 of the Civil Service Rules, the seniority will have to be reckoned from the first appointment and, therefore, the order of the Government regularising ad hoc promotions was illegal and was accordingly set aside.

6. Thereafter, the matter came to this Court and this Court framed 4 issues. We are concerned with issue nos. 3 and 4, which read as under:

“……. (3) Whether the ad hoc/stopgap promotion of Assistant Engineers (and Assistant Executive Engineers) could be made beyond six months and till regularization, by the Government without consulting the Public Service Commission?

Whether the Government could have regularized the ad hoc service by executive order dated 2.1.1998?

Whether the direct recruits’ contention that retrospective regularization could not be made in respect of the ad hoc/ stopgap service and could be made only if the initial appointment as Assistant Engineers or Assistant Executive Engineers was “in accordance with rules”, was correct?

(4) Whether the direct recruits could claim a retrospective date of recruitment from the date on which the post in direct recruitment was available, even though the direct recruit was not appointed by that date and was appointed long thereafter? …….”

Dealing with Rule 23, this Court held as follows :-

“52. Under Rule 23, whenever probation is commenced in respect of an officer, it is permissible to appoint him to the service with retrospective effect from such date from which the person was “continuously on duty as a member of the service”. Read with Rule 2(e) which defines ‘member of service’ it means the time from which he was “continuously holding the pensionable post”. Rule 23 does not make any distinction between different modes of recruitment.

It is well settled that in the case of a direct recruit, the probation can commence only from a date after his selection and he can hold a permanent vacancy only after such selection. According to service jurisprudence (see in fact, discussion under Point 4), a direct recruit cannot claim appointment from a date much before his selection. So far as a promotee and also one who is recruited by transfer, are concerned, before such persons are appointed as members of the service under Rule 23, first 14 their probation must commence.

Then such person becomes a probationer for purposes of Rule 23. Once he is on probation, and if a substantive vacancy in the permanent cadre existed in which the promotee or a recruitee by transfer can be accommodated, and if such a vacancy has arisen from a date previous to the issue of the order of appointment (i.e. appointment by promotion or transfer) then under Rule 23 he may be appointed to the service (i.e. regularly) with retrospective effect from such anterior date (or, as the case may be, from such subsequent date) from which (he has been continuing on duty on a non-pensionable post (see 2(e) defining ‘member of service’].

This period can certainly be one that a person holds in a stop gap or ad hoc manner. The order of ‘promoting a person in the service’ regularly from an anterior date and the order of probation from an anterior date can be simultaneously passed. That is how under Rule 23, a person holding a temporary, stopgap or ad hoc appointment beyond three months can become a probationer and get appointed regularly to the service with retrospective effect.

xxx xxx xxx

56. It is true that while Rule 15 permits probation to be commenced from an anterior date in the case of one “appointed” temporarily there is no such clause in rule 25 dealing with “promotions”. That does not, in our opinion, mean that in respect of a person temporarily promoted or a person temporarily appointed by transfer, probation cannot be commenced from an anterior date. In our view, this power is implicit in Rule 23 itself when it speaks of a probationer being appointed as a member of a service with retrospective effect.

Once a promotee or recruitee by transfer is appointed on probation, it is permissible to appoint him under Rule 23 as a member of the service from an anterior date when a substantive vacancy existed in his quota. It is then obvious that such power to make a retrospective appointment of a member implies a power to commence probation of such person from an anterior date when a clear vacancy existed in his quota. We cannot imagine that the rulemaking authority did not visualize delays in regularization of ad hoc or stopgap or temporary service rendered by the promotees or those recruited by transfer and kept in mind delay only in cases of appointments under Rule 14.

57. Thus, the stopgap/ad hoc or temporary service of a person appointed by transfer as an Assistant Engineer or by promotion as an Assistant Executive Engineer can be regularized through PSC/DPC from an anterior date in a clear vacancy in his quota, if he is eligible and found suitable for such transfer or promotion, as the case may be, and his seniority will count from that date.”

7. Since judgment in Suraj Prakash Gupta’s case (supra) deals with very same Rules which fall for consideration in the present case, it is relevant for decision of our case. There is however, one marked difference between this case and the case of Suraj Prakash Gupta (supra). In Suraj Prakash Gupta (supra) all the promotees had actually worked in the higher posts and the challenge was that they could not get the benefit of the higher posts since they had not worked as per the rules. In the present case, the promotees have not worked even for a day in the higher post before being regularly promoted. In the present case, the learned Single Judge relied upon this judgment to hold that the promotees could not get benefit of anterior appointment under Rule 23.

The Division Bench held otherwise. The difference of opinion is only because of one factor. According to the learned Single Judge, the promotees should have actually worked either on ad hoc basis or officiating basis on the promotional post, whereas according to the Division Bench, regardless of the fact whether the employee had actually worked on the promotional post or not, he is entitled to claim promotion from the date the vacancy arises in the promotional cadre, as long as he was working on a pensionable post and is a member of the service.

8. At this stage, it would be pertinent to mention that it is a settled principle of law that normally no person can be promoted with retrospective effect from a date when he was not born in the cadre. Seniority has to be reckoned only from the date the person entered into that service. In this behalf reference may be made to the judgment of this Court in State of Bihar Vs. Akhouri Sachindra Nath & Ors. where this Court held as follows :-

“12. …..It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into service…..” Thereafter, in Kaushal Kishore Singh vs. Dy. Director of Education3 this Court held as follows :-

“5. The claim of seniority of the employee is always determined in any particular grade or cadre and it is not the law that seniority in one grade or cadre would be dependent on the seniority in another grade or cadre……” In State of Uttaranchal vs. Dinesh Kr. Sharma4 this Court held as follows :-

“34. Another issue that deserves consideration is whether the year in which the vacancy accrues can have any relevance for the purpose of determining the seniority irrespective of the fact when the persons are recruited. Here the respondent’s contention is that since the vacancy arose in 1995-96 he should be given promotion and seniority from that year and not from 1999, when his actual appointment letter was issued by the appellant. This cannot be allowed as no retrospective effect can be given to the order of appointment order under the Rules nor is such contention reasonable to normal parlance. This was the view taken by this Court in Jagdish Ch. Patnaik vs. State of Orissa.” This principle was followed in Sheikh Abdul Rashid & Ors. vs. State of J & K & Ors. again dealing with J & K Civil Service Rules. Again in State of Uttar Pradesh and Others vs. Ashok Kumar Srivastava and Another this Court held that the normal rule is that seniority should be reckoned from the actual date of appointment.

It was held thus:-

“25. In view of the aforesaid enunciation of law, the irresistible conclusion is that the claim of the first respondent for conferment of retrospective seniority is absolutely untenable and the High Court has fallen into error by granting him the said benefit and accordingly the impugned order deserves to be lancinated and we so do.”

9. The respondents have relied upon two judgments in U.D. Lama and Others vs. State of Sikkim and Others7 and Asis Kumar Samanta and Others vs. State of West Bengal and Others8. In both the cases this Court upheld the grant of promotion from a retrospective date. The facts in U.D. Lama and Others case (supra) are very peculiar.

The State of Sikkim was formed on 26th April, 1975. The Sikkim State Civil Service Rules, 1977 came into force on 01.07.1977 which provided for consultation with the State Public Service Commission. Surprisingly however, there was no Public Service Commission in the State and Chairman to the Public Service Commission was appointed for the first time on 20th November, 1981 and he assumed office on 11.01.1982. Prior to the constitution of the Commission, the State Government took a decision to induct officers into the State Public Service on the basis of a written examination and interview. Certain officers were selected and so appointed. The second set of officers were those who had been selected by the Sikkim Public Service Commission.

The first set of officers were appointed in 1982 whereas the second set of officers were appointed in 1990 but the officers who were appointed in 1990 were given retrospective appointment from the date of vacancy. This Court held that the appointment of the first batch of officers though upheld by this Court in another case, having been made without consultation with the Commission, these officers appointed in violation of the Rules cannot claim seniority over those who had been appointed strictly in accordance with the Rules and in consultation with the Commission. In Asis Kumar Samanta and Others case (supra) also the situation was very unusual.

Vacancies in the promotion quota occurred in 01.01.1989 but the promotions could not be made because of interim stay granted by the High Court. The stay order was vacated on 11.12.1990 and the selection process for promotions commenced only thereafter. In these circumstances the Public Service Commission recommended that the promotees be given retrospective seniority with effect from 31.12.1990 because for almost two years the promotion process had been stalled. It would be pertinent to mention that in both these cases normal principle that seniority should be considered from the date of appointment has not been overruled but these judgments have been rendered in the peculiar facts and circumstances of these cases.

10. On behalf of the private respondents-promotees, it was urged that the promotees had passed the departmental exam many years back and became eligible to be promoted much earlier. It is submitted that in view of these peculiar facts, the State was justified in granting permission to the promotees retrospectively. We are not impressed with these arguments because even the direct recruitment process took an inordinately long time. The vacancies in the quota of direct recruits also occurred much earlier. The combined competitive examination was held in the year 2002 and it took more than 2 years to finalise the process of direct recruitment. Therefore, the delay has affected both the promotees and the direct recruits.

11. From the judgments referred to hereinabove it is apparent that the normal rule is that a person is entitled to seniority only from the date when the said person actually joins the post. True it is, that there are exceptions and sometimes “in service” candidates can be granted promotion from a date anterior to their being regularly promoted/appointed. However, this can be done only if the rules enable retrospective appointment and on fulfilling the other requirement of the rules.

12. As far as the present case is concerned, Rule 23 of the Civil Services Rules has been extracted hereinabove. It, no doubt, postulates the appointment of a probationer to the service on a date anterior to his regular appointment. However, this is subject to two conditions. The first, is that the vacancy in his category should have existed and no appointment can be made from a date prior to the date of existence of vacancy. The second condition is that the person must have been continuously on duty as member of service from the said date. As far as the first condition is concerned there is no doubt that the promotees have been appointed from the date when the vacancies existed in their promotional quota. It is the second aspect of the matter which needs to be analysed in detail.

13. In Suraj Prakash Gupta’s case (supra) this Court held that direct recruits could not claim seniority from a date anterior to their appointment. The reason is simple. The direct recruits were not even born in the cadre and were not holding any post in the service. There can be no manner of doubt that direct recruits cannot get seniority from a date prior to their appointment. While interpreting Rule 23, we must also take note of Rule 9 of Excise Rules which deals with probation. When a person is appointed to the post of ETO whether by promotion or by way of direct recruitment, he shall be on probation for a period of two years.

The explanation to Rule 9 provides that appointment on probation shall be made against substantive vacancies only. The explanation also provides that any period of officiating service shall be reckoned as period spent on probation when a person 24 is formally appointed to the service. This clearly envisages that the person should have been actually working on the post of ETO to be considered to be on probation. The whole concept of probation is to judge the suitability of the candidate appointed to the post. There can be no objective assessment if the person is not actually working on the post. The promotees never worked as ETOs prior to their formal promotion. Therefore, though vacancies may have been there in their quota, they having not worked against the post of ETO could not have been appointed and granted seniority from an anterior date.

14. In our view the rules in question clearly provide that not only vacancies should have been existing from an earlier date but the person to be granted retrospective promotion should have also been working against the post. To give an example in the context of the present Rules, a vacancy in the promotional cadre existed on 01.01.10. However, a person from the feeder category is promoted on temporary/officiating/adhoc/or on any other basis to work against the post on 01.01.11. He is thereafter regularly appointed on 01.01.12.

Though the vacancy may have existed from 01.01.10 the employee can get promotion only from 01.01.11 when he actually started working against the said post.

15. It is well settled that retrospective promotion to a particular group can violate Article 14 and 16 of the Constitution of India. Even if the Rules enable the State to make retrospective promotion, such promotion cannot be granted at the cost of some other group. Therefore, the only reasonable interpretation can be that the promotees can get promotion from an anterior date only if they have worked against the said post even if it be on temporary or officiating, or ad-hoc basis etc.

16. On analysis of Rule 24 of the Civil Services Rules, it is apparent that as per this Rule the seniority of a person subject to the said Rules is to be determined by the date of first appointment to such service, class, category or grade, as the case may be. Therefore, it is apparent that only the 26 service rendered in a particular service, class, category or grade can be taken into consideration and not the service rendered in some other service, class , category or grade while determining the seniority.

Note-1 to the Rules also makes it clear that the date of first appointment shall mean the date of permanent appointment or the first appointment on probation on a clear vacancy. We have already held above that appointment on probation obviously envisages that the person is working against the said post in the particular service, class, category or grade.

17. Therefore, on a combined reading of Rule 9 of the Excise Rules and Rule 23 and 24 of the Civil Services Rules, we are clearly of the view that promotion can be granted on retrospective basis to promotee officers from a date on which the clear-cut vacancy in the promotional cadre has occurred subject however to the conditions that the promotee should have worked against that post prior to his regular appointment.

18. The Division Bench relied upon the definition of the ‘member of service’ as defined in Section 2(e) of the Civil Service Rules, according to which the ‘member of service’ is a person who holds a pensionable post. According to the Division Bench, since the promotees were working against pensionable posts in the feeder category they were members of the Service and thus they satisfied the conditions of Rule 23. We cannot agree with this proposition. The post of ETO is a gazetted post in a totally different cadre. The promotees were not members of the Service as ETOs. They may have been holding pensionable posts but that does not mean that they were members of the Service as ETOs.

The learned Single Judge was right in holding that the promotees could not have been given the benefit of retrospective promotion and seniority from a date when they were not even born in the cadre and not working against the post. We are also of the view that this retrospective promotion also violates the provisions of Rule 9 of the Excise Rules.

19. In view of the above discussion we set aside the judgment of the Division Bench dated 06.03.2014 and restore the judgment of the learned Single Judge dated 07.05.2013 in S.W.P. No.2356 of 2009. 20. The appeals are accordingly allowed.

………………………………J. (Madan B. Lokur)

………………………………J. (Deepak Gupta)

New Delhi

October 26, 2017

CIVIL, Service Law

Extension of service granted by Presidential orders

10 Oct 2017 Advocatetanmoy

ARMY RULES:
r.16-A – Extension of service in ‘exigency of service’ – Senior most Major General in DRDO recommended by Selection Board for promotion as Lieutenant General – Extension of service granted by Presidential orders –

Held: President of India was conscious of the fact while granting extension in service to appellant that his case for promotion as Lieutenant General was under consideration – Extension of service granted to the senior most eligible officer for the purpose of consideration of his promotional claim, for all intents and purposes will be deemed to satisfy the parameters of ‘exigency of service’, stipulated in r. 16A – Administrative Law – Legitimate expectation.
Major General H.M. Singh, VSM v. Union of India and Anr.[2014]

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