Service Law – Advocatetanmoy Law Library

Service benefits for the Judges of Fast Track Courts

August 27, 2018Advocatetanmoy

In service jurisprudence, the appointments are made by employer with different nomenclature/characteristics. Appointments are made both on permanent or temporary basis against permanent post or temporary post. The appointment can also be made on adhoc basis on permanent or temporary post. There is one common feature of appointments of permanent, temporary or adhoc appointment i.e. those appointments are made against the post whether permanent or temporary.
On the contrary, for contractual appointment, there is no requirement of existence of any post. A contractual appointment is not normally made against a post. Further, contractual appointments are also not normally on Pay Scale. On the mere fact that the advertisement as well as the appointment was made initially for a period of five years, the nature of appointment of the appellants cannot be termed as contractual appointment. When a Government servant is contemplated to hold a certain post for a limited period it is a Tenure Post.

SUPREME COURT OF INDIA

K. Anbazhagan & ANR. Vs. The Registrar General, High Court of Madras & ANR. Continue reading →

Union of India & Ors. Vs. Ram Lakhan Sharma [ ALL SC 2018 JULY]

July 12, 2018Advocatetanmoy

KEYWORDS:- RAPE- Removal from service- disciplinary inquiry – natural Justice-

The question as to whether Inquiry Officer who is supposed to act independently in an inquiry has acted as prosecutor or not is a question of fact which has to be decided on the facts and proceedings of particular case.
The disciplinary proceedings are quasi-judicial proceedings and Inquiry Officer is in the position of an independent adjudicator and is obliged to act fairly, impartially. The authority exercises quasi-judicial power has to act in good faith without bias, in a fair and impartial manner.
When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.

DATE: JULY 02, 2018

ACTS: Section 376 IPC -CRPF Rules, 1955

SUPREME COURT OF INDIA

Union of India & Ors. Vs. Ram Lakhan Sharma

[Civil Appeal No. 2608 of 2012]

[Civil Appeal No.6745 of 2013]

[Civil Appeal No.9373-9374 of 2013]

[Civil Appeal No.1800 of 2014]

ASHOK BHUSHAN, J.

1. These appeals have been filed by the Union of India questioning the judgments of the Gauhati High Court by which writ petitions filed by the respondents challenging their orders of removal were allowed by setting aside the removal/dismissal orders and the respondents were directed to be reinstated. The High Court had allowed the writ petitions filed by the respondents on more or less similar grounds, hence, it shall be sufficient to notice the facts and pleadings in detail in Civil Appeal No.2608 of 2012 for deciding this batch of appeals.

2. The respondent- Ram Lakhan Sharma was appointed as constable in the Central Reserve Police Force (hereinafter referred to as “CRPF”) on 10.04.1991. On 23.10.1999 while he was posted as constable 11 Bn., CRPF at Agartala, Tripura he went out from Guard duty at 09.00 a.m. and returned back at 09.50 a.m. In the afternoon, an allegation was made by one lady Smt. Gita Paul making allegation of rape against the respondent and First Information Report was registered on 23.10.1999 at the Police Station under Section 376 IPC.

3. On 23.10.1999 the appellant was placed under suspension. On 04.12.1999 chargesheet was issued to the respondent containing articles of charges I and II. First charge was that the appellant remained absent without proper permission of competent authority with consent of his Guard Commander from his duty on 23.10.1999 from 0900 hrs. to 0930 hrs. 3 Second charge was that he while functioning as constable (Guard) has committed an act of misconduct in his capacity as a member of the force in that he tried to do sexual intercourse with a woman with mutual consent by giving money which amounts to indiscipline/moral turpitude.

4. The disciplinary authority appointed one Shri S.S. Bisht, Second-in-Command, 11 Bn CRPF as Inquiry Officer. The Inquiry Officer recorded the prosecution evidence. The Inquiry Report was submitted which was also supplied to the delinquent vide letter dated 07.02.2000 asking the respondent to submit reply within 15 days. The Commandant, 11 Bn passed an order on 19.03.2000 imposing penalty of removal from service w.e.f. 19.03.2000 under Section 11(1) of the Central Reserve Police Force Act, 1949 read with Rule 27 of the Central Reserve Police Force Rules, 1955.

5. On the basis of First Information Report registered against the respondent a chargesheet was submitted in the Court of Sessions Judge, Tripura, Agartala. Learned Sessions Judge after completing the trial on 20.09.2001 acquitted the respondent from 4 charges levelled against him. After acquittal from criminal case the respondent filed a Writ Petition No.6778 of 2000 in the High Court of Allahabad challenging his order of removal. The High Court by order dated 20.05.2004 disposed of the writ petition giving liberty to the respondent to file an appeal under CRPF Rules, 1955 within two weeks. In pursuance of the order of the High Court an appeal was filed before D.I.G.R., CRPF, Patna.

The Appellate Authority rejected the appeal by its order dated 22.07.2004 against which order a revision was filed before the Inspector General of Police, CRPF which too was rejected on 02.03.2005. Challenging the order of removal as well as orders passed in appeal and revision the respondent filed Writ Petition (C) No.14 of 2006. Learned Single Judge vide judgment dated 12.04.2010 allowed the writ petition by setting aside the removal order and directed for reinstatement of the respondent. The learned Single Judge also permitted the appellant to initiate the disciplinary inquiry afresh from the stage of appointing Presenting Officer.

It was further directed that if the departmental proceeding is required to be started afresh, the respondent shall be placed under suspension and during the period of suspension, subsistence allowance should be paid. It was left to the wisdom of the authority to decide on arrear pay and allowances of the respondent.

6. Union of India filed an appeal against the judgment of the learned Single Judge being Writ Appeal No.25 of 2010. The Division Bench of the High Court by its judgment dated 10.01.2011 dismissed the writ appeal aggrieved by which order Civil Appeal No.2608 of 2012 has been filed by the Union of India.

7. The facts and pleadings in other civil appeals being more or less similar they need to be only briefly noted.

8. Union of India has filed this appeal challenging the judgment of the Division Bench dated 18.01.2013 by which Writ Appeal No.1 of 2013 filed by the Union of India questioning the judgment of the learned Single Judge was dismissed. The respondent, Shri T. Lupheng while posted at Manipur on 24.03.2008 sought 6 permission from his senior during his duty hours for going to the Bank to withdraw his salary.

He was allowed to go and directed to report back to his duties. On his return he was found under the influence of alcohol. On 07.04.2008 the personnel was suspended. On four articles of charges inquiry was held. The Inquiry Officer recorded the evidence of prosecution. The inquiry was completed and report was submitted on 19.06.2008. The disciplinary authority vide its order dated 05.07.2008 awarded the punishment of dismissal from service. An appeal was filed which was dismissed by DIG, CRPF on 07.11.2008. The revision was also dismissed by IGP-C/S, CRPF on 05.06.2009. Writ Petition No.556 of 2009 was filed in the Gauhati High Court which was allowed by the learned Single Judge by judgment dated 04.08.2012.

A writ appeal was filed by the Union of India which was dismissed by the Division Bench on 18.01.2013 against which this appeal has been filed.

9. These appeals have been filed by the Union of India against the Division Bench judgment dated 7 24.08.2012 by which the appeal filed by the Union of India questioning the judgment dated 08.02.2012 has been dismissed. The respondent was serving as constable in F/27 Bn CRPF. It was alleged that on 13.04.2000 he left lines without seeking prior permission, consumed liquor and created nuisance in the market. The chargesheet was issued to the respondent containing two articles of charges.

The Inquiry Officer was appointed. Inquiry Officer recorded the statement of prosecution witnesses. By an order dated 30.08.2000 the respondent was dismissed from services. There were two other delinquents apart from the respondent who were proceeded with and dismissed by the common order. Learned Single Judge relying on an order of the High Court in Writ Petition (C) No.297 of 2002 (Sri Mutum Shanti Kumar Singh vs. Union of India) on 08.02.2012 set aside the order of the dismissal and directed reinstatement of the respondent. Union of India filed Writ Appeal No.32 of 2012 challenging the order of Learned Single Judge before the Gauhati High Court.

The Division Bench of the High Court by order dated 8 24.08.2012 dismissed the writ appeal. Review petition was filed by the Union of India which too was dismissed on 18.01.2013. Consequently, these appeals have been filed by the Union of India.

10. This appeal has been filed by the Union of India against the Division Bench judgment of the High Court dated 29.05.2013 by which writ petition filed by the respondent challenging the disciplinary proceedings for dismissal of the respondent was allowed.

The respondent while serving at Chothegaon, Bishnupur (Manipur) on 12.03.2007 deserted from line without permission of competent authority. Subsequently, an FIR was lodged on 12.03.2007. A warrant was issued to apprehend him on 29.07.2007 but he could not be apprehended. A Court of Inquiry was conducted and the respondent was declared “DESERTER” w.e.f. 12.03.2007 vide order dated 13.07.2007. A Departmental proceeding was initiated with articles of charges on 12.11.2007. Since, the respondent had not reported in the Unit, the inquiry proceeded ex parte. Charges levelled against the respondent were found proved. An order dated 20.05.2008 was passed awarding dismissal from service to the respondent. Thereafter, he submitted appeal before DIG, CRPF. A writ petition was filed by the respondent. The writ petition was disposed of on 29.05.2013 setting aside the dismissal order and directing for reinstatement. The appeal has been filed against the above said judgment.

11. The Gauhati High Court had allowed the writ petition filed by the respondents on the ground that in the disciplinary inquiry the principles of natural justice were violated. The High Court found that no Presenting Officer was appointed and the Inquiry Officer acted as prosecutor which violates the principles of natural justice and the entire inquiry was set aside on the aforesaid ground with liberty to the respondent to hold afresh inquiry from the stage of appointing of the Presenting Officer.

12. All the appeals filed by the Union of India raises almost similar question of law and facts and the learned counsel for the Union of India has also raised common submission in all the appeals.

13. Learned counsel for the appellant, Shri Vikramjit Banerjee, Addl. Solicitor General contends that the High Court committed error in setting aside the dismissal order on the ground of non-appointment of Presenting Officer. It is submitted that Rule 27 of CRPF Rules, 1955 which provides for holding of disciplinary inquiry does not provide for appointment of Presenting Officer. The appellants have followed the requirement of Rule 27 in holding disciplinary inquiry in consonance with principles of natural justice, hence, there was no occasion to set aside the dismissal order. It is submitted that the respondents were given full opportunity in the disciplinary inquiry including serving chargesheet, giving opportunity to cross-examine the witnesses, opportunity to lead evidence and submit a reply to the Inquiry Report.

14. Learned counsel for the appellant submits that Rule 27 does not mandate the appointment of Presenting Officer to hold disciplinary inquiry. It is further submitted that even if it is assumed that while non-appointment of Presenting Officer, principles of natural justice have been violated, respondents have to show what prejudice has been caused due to non-appointment of the Presenting Officer in the department enquiry. No prejudice having been caused to any of the respondents, they were not entitled for grant of relief as has been granted by the High Court.

15. Learned counsel appearing for the respondents refuting the above submissions contends that the High Court has rightly set aside the dismissal/removal orders of the respondents. In the facts and circumstances of the present case, appointment of Presenting Officer was necessary to ensure compliance of principles of natural justice which having not been done the respondents have been seriously prejudiced. It is submitted that Inquiry Officer himself acted as prosecutor by putting questions to the prosecution witnesses. Inquiry Officer having become prosecutor with entire approach towards inquiry was tainted with bias and has rightly been interfered by the High Court. It is submitted that Inquiry Officer having acted as a prosecutor no further prejudice needs to be proved.

16. We have considered the submissions of the learned counsel for the parties and perused the records.

17. Before we proceed to consider the rival submissions of the learned counsel for the parties, it is relevant to look into the reasons given by the High Court for allowing the writ petitions filed by the respondents.

18. In Civil Appeal No.2608 of 2012(leading appeal) judgment of learned Single Judge allowing the writ petition is dated 12.04.2010 which is filed at Annexure P-7 to the appeal. After elaborately considering the facts of the case, the nature of charges and affidavit filed in the writ petition, learned Judge proceeded to decide the writ petition. Learned Single Judge had directed to make available the proceedings of the disciplinary inquiry and on perusal of the proceedings of the disciplinary inquiry Learned Single Judge came to the conclusion that no Presenting Officer was appointed in the said proceedings and the Enquiry Officer himself led the examination in chief of the prosecution witness by putting questions. The High Court further came to the conclusion that Enquiry Officer acted himself as prosecutor and Judge in the said disciplinary enquiry. It is useful to extract paragraphs 9 and 10 of the judgment which are to the following effect:

“(9) This Court directed the learned Asstt. S.G. appearing for the respondents to make available the proceedings of the disciplinary enquiry against the petitioner. On perusal of the proceeding, it is crystal clear that no Presenting Officer was appointed in the said proceedings and the Enquiry Officer himself led the examination in chief of the prosecution witness by putting questions. This fact is not disputed by the learned Asstt. S.G. appearing for the respondents, but his only submission is that all opportunities were given to the writ petitioner to put up his defence case and also the writ petitioner had pleaded guilty for both the charges levelled against him.

(10) It is, therefore, crystal clear that the Enquiry Officer acted himself as Prosecutor and Judge in the said disciplinary enquiry against the writ petitioner. From this admitted fact, it may not be wrong to infer that there were no fair procedures in the disciplinary proceedings as a result of which principle of natural justice was undisputedly denied to the writ petitioner.”

19. The Division Bench of the High Court in writ appeal against the aforesaid judgment also affirmed the aforesaid view of the learned Single Judge while dismissing the writ appeal.

20. As noted above there are two principal submissions raised by the learned counsel for the appellant, they are:

(i) The disciplinary inquiry is required to be conducted under Rule 27 of 1955 Rules which does not contemplate appointment of a Presenting Officer. Hence, the inquiry proceedings are not vitiated by the non-appointment of Presenting Officer.

(ii) The disciplinary inquiry has been held against the respondents by complying with the principles of natural justice. No principle of natural justice is violated by non-appointment of Presenting Officer. No prejudice has been caused to the respondents by non-appointment of Presenting Officer.

21. Rule 27 sub-rule (c) of the CRPF Rules, 1955 provides for the procedure for conducting a departmental enquiry which is as follows:

“Rule 27(c) The procedure for conducting a departmental enquiry shall be as follows:-

(1) The substance of the accusation shall be reduced to the form of a written charge which should be as precise as possible. The charge shall be read out to the accused and a copy of it given to him at least hrs. before the commencement of the enquiry.

(2) At the commencement of the enquiry the accused shall be asked to enter a plea of Guilty or Not Guilty after which evidence necessary to establish the charge shall be let in. The evidence shall be material to the charge and may either be oral or documentary, if oral:

(i) it shall be direct:

(ii) it shall be recorded by the Officer conducting, the enquiry himself in the presence of the accused:

(iii) the accused shall be allowed to cross examine the witnesses.

(3) When documents are relied upon in support of the charge, they shall be put in evidence as exhibits and the accused shall, before he is called upon to make his defence be allowed to inspect such exhibits.

(4) The accused shall then be examined and his statement recorded by the officer conducting the enquiry. If the accused has pleaded guilty and does not challenge the evidence on record, the proceedings shall be closed for orders. If he pleads “Not guilty”, he shall be required to file a written statement and a list of such witnesses as he may wish to cite in his defence within such period, which shall in any case be not less than a fortnight, as the officer conducting enquiry may deem reasonable in the circumstances of the case. If he declines to file a written statement, he shall again be examined by the officer conducting the enquiry on the expiry of the period allowed.

(5) If the accused refuses to cite any witnesses or to produce any evidence in his defence, the proceedings shall be closed for orders. If he produces any evidence the officer conducting the enquiry shall proceed to record the evidence. If the officer conducting the enquiry considers that the evidence of any witness or any document which the accused wants to produce in his defence is not material to the issues involved in the case he may refuse to call such witness or to allow such document to be produced in evidence, but in all such cases he must briefly record his reasons for considering the evidence inadmissible. When all relevant evidence has been brought on record, the proceedings shall be closed for orders.

(6) If the Commandant has himself held the enquiry, he shall record his findings and pass orders where he has power to do so. If the enquiry has been held by any officer other than the Commandant, the officer conducting the enquiry shall forward his report together with the proceedings to the Commandant who shall record his findings and pass order where he has power to do so.”

22. A perusal of the aforesaid Rule does not indicate that Rule contemplates appointment of Presenting Officer. Service conditions including punishment and appeal procedure of an employee are governed by statutory rules. The CRPF Act, 1949 has been enacted by the Parliament for the constitution and regulation of an armed Central Reserve Police Force. Section 18 of the Act empowers the Central Government to make rules for carrying out the purposes of this Act.

23. The disciplinary proceedings are quasi-judicial proceedings and Inquiry Officer is in the position of an independent adjudicator and is obliged to act fairly, impartially. The authority exercises quasi-judicial power has to act in good faith without bias, in a fair and impartial manner.

24. Rules of natural justice have been recognised and developed as principles of administrative law. Natural justice has many facets. Its all facets are steps to ensure justice and fair play. This Court in Suresh Koshy George vs. University of Kerala and others, AIR 1969 SC 198 had occasion to consider the principles of natural justice in the context of a case where 18 disciplinary action was taken against a student who was alleged to have adopted malpractice in the examination. In paragraph 7 this Court held that the question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of Tribunal and the rules under which it functions. Following was held in paragraphs 7 and 8:

“7….The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions. 8. In Russel v. Duke of Norfolk, Tucker, L. J. observed:

“There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.”

25. A Constitution Bench of this Court has elaborately considered and explained the principles of natural justice in A.K. Kraipak and others vs. Union of India and others, AIR 1970 SC 150. This Court held that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The concept of natural justice has undergone a great deal of change in recent years. Initially recognised as consisting of two principles that is no one shall be a judge in his own cause and no decision shall be given against a party without affording him a reasonable hearing, various other facets have been recognised. In paragraph following has been held:

“20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria 20 causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem).Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably….”

26. In State of Uttar Pradesh and others vs. Saroj Kumar Sinha, 2010 (2) SCC 772, this Court had laid down that inquiry officer is a quasi-judicial authority, he has to act as independent adjudicator and he is not a representative of the department/disciplinary authority/Government. In paragraphs 28 and 30 following has been held:

“28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.”

27. When the statutory rule does not contemplate appointment of Presenting Officer whether non-appointment of Presenting Officer ipso facto vitiates the inquiry? We have noticed the statutory provision of Rule 27 which does not indicate that there is any statutory requirement of appointment of Presenting Officer in the disciplinary inquiry. It is thus clear that statutory provision does not mandate appointment of Presenting Officer. When the statutory provision does not require appointment of Presenting Officer whether there can be any circumstances where principles of natural justice can be held to be violated is the broad question which needs to be answered in this case. We have noticed above that the High Court found breach of principles of natural justice in Inquiry Officer acting as the prosecutor against the respondents. The Inquiry Officer who has to be independent and not representative of the disciplinary authority if starts acting in any other capacity and proceed to act in a manner as if he is interested in eliciting evidence to punish an employee, the principle of bias comes into place.

28. Justice M. Rama Jois of the Karnataka High Court had occasion to consider the above aspect in Bharath Electronics Ltd. vs. K. Kasi, ILR 1987 Karnataka 366. In the above case the order of domestic inquiry was challenged before the Labour and Industrial Tribunal. The grounds taken were, that inquiry is vitiated since Presenting Officer was not appointed and further Inquiry Officer played the role of prosecutor. This Court held that there is no legal compulsion that Presenting Officer should be appointed but if the Inquiry Officer plays the role of Presenting Officer, the inquiry would be invalid. Following was held in paragraphs 8 and 9: “8. One other ground on which the domestic inquiry was held invalid was that Presenting Officer was not appointed. This view of the Tribunal is also patently untenable.

There is no legal compulsion that Presenting Officer should be appointed. Therefore, the mere fact that the Presenting Officer was not appointed is no ground to set aside the inquiry See : Gopalakrishna Reddy v. State of Karnataka (ILR 1980 Kar 575). It is true that in the absence of Presenting Officer if the Inquiring Authority plays the role of the Presenting Officer, the inquiry would be invalid and this aspect arises out of the next point raised for the petitioner, which I shall consider immediately hereafter.

9. The third ground on which the Industrial Tribunal held that the domestic inquiry was invalid was that the Inquiry Officer had played the role of the Presenting Officer. The relevant part of the findings reads : “The Learned Counsel for the workman further contended that the questions put by the Enquiry Officer to the Management’s witnesses themselves suggest that he was biased and prejudiced against the workman. There has been no explanation as to why no Presenting Officer was appointed and as to why the Enquiry Officer took upon himself the burden of putting questions to the Management witnesses. The enquiry proceedings at Ext. A-6 disclose that after the cross-examination of the Management’s witnesses by the defence, the Enquiry Officer has further put certain questions by way of explanation, but from their nature an inference arises that they are directed to fill in the lacuna.

The Learned Counsel for the Management contended that the Enquiry Officer has followed the principles of natural justice and that the domestic enquiry is quite valid. I am of the view that the fact that the Enquiry Officer has himself taken up the role of the Presenting Officer for the management goes to the root of the matter and vitiates the enquiry,”

As far as position in law is concerned, it is common ground that if the Inquiring Authority plays the role of a Prosecutor and cross-examines defence witnesses or puts leading questions to the prosecution witnesses clearly exposing a biased state of mind, the inquiry would be opposed to principles of natural justice. But the question for consideration in this case is : Whether the Inquiry Officer did so ? It is also settled law that an Inquiring Authority is entitled to put questions to the witnesses for clarification wherever it becomes necessary and so long the delinquent employee is permitted to cross-examine the witnesses after the Inquiring Authority questions the witnesses, the inquiry proceedings cannot be impeached as unfair.

See : Munchandani Electric and Radio Industries Ltd. v. Their Workman.”

29. This Court had occasion to observe in Workmen of Lambabari Tea Estate vs. Lambabari Tea Estate, 1966 (2) LLJ 315, that if Inquiry Officer did not keep his function as Inquiry Officer but becomes prosecutor, the inquiry is vitiated. Following was observed: “The inquiry which was held by the management on the first charge was presided over by the manager himself. It was conducted in the presence of the assistant manager and two others.

The enquiry was not correct in its procedure. The manager recorded the statements, cross-examined the labourers who were the offenders and made and recorded his own statements on facts and questioned the offending labourers about the truth of his own statements recorded by himself. The manager did not keep his function as the enquiring officer distinct but became witness, prosecutor and manager in turns. The record of the enquiry as a result is staccato and unsatisfactory.”

30. A Division Bench of the Madhya Pradesh High Court speaking through Justice R.V. Raveendran, CJ (as he then was) had occasion to consider the question of vitiation of the inquiry when the Inquiry Officer starts himself acting as prosecutor in Union of India and ors. vs. Mohd. Naseem Siddiqui, ILR (2004) MP 821. In the above case the Court considered Rule 9(9) (c) of the Railway Servants (Discipline & Appeal) Rules, 1968. The Division Bench while elaborating fundamental principles of natural justice enumerated the seven well recognised facets in paragraph 7 of the judgment which is to the following effect:

“7. One of the fundamental principles of natural justice is that no man shall be a judge in his own cause. This principle consists of seven well recognised facets:

(i) The adjudicator shall be impartial and free from bias,

(ii) The adjudicator shall not be the prosecutor,

(iii) The complainant shall not be an adjudicator,

(iv) A witness cannot be the Adjudicator,

(v) The Adjudicator must not import his personal knowledge of the facts of the case while inquiring into charges,

(vi) The Adjudicator shall not decide on the dictates of his Superiors or others,

(vii) The Adjudicator shall decide the issue with reference to material on record and not reference to extraneous material or on extraneous considerations. If any one of these fundamental rules is breached, the inquiry will be vitiated.”

31. The Division Bench further held that where the Inquiry Officer acts as Presenting Officer, bias can be presumed. In paragraph 9 is as follows:

“9. A domestic inquiry must be held by an unbiased person who is unconnected with the incident so that he can be impartial and objective in deciding the subject matters of inquiry. He should have an open mind till the inquiry is completed and should neither act with bias nor give an impression of bias. Where the Inquiry Officer acts as the Presenting Officer, bias can be presumed. At all events, it clearly gives an impression of bias. An Inquiry Officer is in position of a Judge or Adjudicator. The Presenting Officer is in the position of a Prosecutor.

If the Inquiry Officer acts as a Presenting Officer, then it would amount to Judge acting as the prosecutor. When the Inquiry Officer conducts the examination-in- chief of the prosecution witnesses and leads them through the facts so as to present the case of the disciplinary authority against the 27 employee or cross- examines the delinquent employee or his witnesses to establish the case of the employer/disciplinary authority evidently, the Inquiry Officer cannot be said to have an open mind. The very fact that he presents the case of the employer and supports the case of the employer is sufficient to hold that the Inquiry Officer does not have an open mind.”

32. The Division Bench after elaborately considering the issue summarised the principles in paragraph 16 which is to the following effect:

“16. We may summarise the principles thus:

(i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a prosecutor.

(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Non- appointment of a Presenting Officer, by itself will not vitiate the inquiry.

(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross-examine such witnesses on those clarifications.

(iv) If the Inquiry Officer conducts a regular examination-in-chief by leading the prosecution witnesses through the prosecution case, or puts leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.

(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognised that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry. Whether an Inquiry Officer has merely acted only as an Inquiry Officer or has also acted as a Presenting Officer depends on the facts of each case. To avoid any allegations of bias and running the risk of inquiry being declared as illegal and vitiated, the present trend appears to be to invariably appoint Presenting Officers, except in simple cases.

Be that as it may.”

33. We fully endorse the principles as enumerated above, however, the principles have to be carefully 29 applied in facts situation of a particular case. There is no requirement of appointment of Presenting Officer in each and every case, whether statutory rules enable the authorities to make an appointment or are silent. When the statutory rules are silent with regard to the applicability of any facet of principles of natural justice the applicability of principles of natural justice which are not specifically excluded in the statutory scheme are not prohibited.

When there is no express exclusion of particular principle of natural justice, the said principle shall be applicable in a given case to advance the cause of justice. In this context reference is made of a case of this Court in Punjab National Bank and others vs. Kunj Behari Misra, 1998 (7) SCC 84. In the above case, this Court had occasion to consider the provisions of Punjab National Bank Officer Employees’ (Discipline and Appeal) Regulations, 1977. Regulation 7 provides for action on the enquiry report. Regulation 7 as extracted in paragraph 10 of the judgment is as follows:

“7. Action on the enquiry report.-

(1) The disciplinary authority, if it is not itself the enquiring authority, may, for reasons to be recorded by it in writing, remit the case to the enquiring authority for fresh or further enquiry and report and the enquiring authority shall thereupon proceed to hold the further enquiry according to the provisions of Regulation 6 as far as may be.

(2) The disciplinary authority shall, if it disagrees with the findings of the enquiring authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

(3) If the disciplinary authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in Regulation 4 should be imposed on the officer employee, it shall, notwithstanding anything contained in Regulation 8, make an order imposing such penalty.

(4) If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the officer employee concerned.”

34. The question which was debated before this Court was that since Regulation 7(2) does not contain any provision for giving an opportunity to the delinquent officer to represent before disciplinary authority who reverses the findings which were in favour of the delinquent employee, the rules of natural justice are not applicable. This Court held that principle of natural justice has to be read in Regulation 7(2) even though rule does not specifically require hearing of delinquent officer. In paragraph 19 following was held:

“19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.”

35. Thus, the question as to whether Inquiry Officer who is supposed to act independently in an inquiry has acted as prosecutor or not is a question of fact which has to be decided on the facts and proceedings of particular case. In the present case we have noticed that the High Court had summoned the entire inquiry proceedings and after perusing the proceedings the High Court came to the conclusion that Inquiry Officer himself led the examination in chief of the prosecution witness by putting questions. The High Court further held that the Inquiry Officer acted himself as prosecutor and Judge in the said disciplinary enquiry. The above conclusion of the High Court has already been noticed from paragraphs 9 and 10 of the judgment of the High court giving rise to Civil Appeal No.2608 of 2012.

36. The High Court having come to the conclusion that Inquiry Officer has acted as prosecutor also, the capacity of independent adjudicator was lost which adversely affecting his independent role of adjudicator. In the circumstances, the principle of bias shall come into play and the High Court was right in setting aside the dismissal orders by giving liberty to the appellants to proceed with inquiry afresh. We make it clear that our observations as made above are in the facts of the present cases.

37. In result, all the appeals are dismissed subject to the liberty as granted by the High Court that it shall be open for the appellants to proceed with the inquiry afresh from the stage as directed by the High Court and it shall be open for the appellant to decide on arrear pay and allowances of the respondents.

…………………J. (ADARSH KUMAR GOEL)

…………………J. (ASHOK BHUSHAN)

NEW DELHI,

JULY 02, 2018.

Director General, CRPF & Ors. Vs. Janardan Singh & Ors. [ALL SC 2018 JULY]

July 6, 2018Advocatetanmoy

KEYWORDS:-Special (Duty) Allowance- Equality before Law-Valid classification-

DATE:- JULY 02, 2018

Article 14 does not prohibit reasonable classification but for passing test of permissible classification there are two conditions as observed in Budhan Choudhary versus State of Bihar must be satisfied.

ACT:- Article 14 of Indian Constitution

SUPREME COURT OF INDIA

Director General, CRPF & Ors. Vs. Janardan Singh & Ors.

[Civil Appeal No.5850 of 2011]

ASHOK BHUSHAN,J.

1. DirectorGeneral, CRPF, the Union of India and Additional DirectorGeneral, group centre, CRPF, has come up in this appeal questioning the judgment of Allahabad High Court dated 14.02.2008 by which judgment the High Court dismissed Writ Petition filed by the appellant upholding the order of Central Administrative Tribunal dated 05.11.2007 by which claim of Special (Duty) Allowance of the respondent was accepted.

2. Brief facts of the case are: The Government of India, Ministry of Finance vide its Office Memorandum dated 14.12.1983 decided to extend certain benefits to the officers in service in North Eastern Region of the country. One of the benefits which was decided to be extended to those employees/officers was to grant Special (Duty) Allowance on posting to any station in the North Eastern Region. The said benefits were subsequently extended to the employees of CRPF. The respondents 2,3 and 4 were appointed as pharmacists in CRPF on 08.09.1989, 28.06.1988 and 11.06.1981 respectively and they were posted in different places in India including North Eastern Region. A letter dated 31.03.1987 was issued by Government of India, Ministry of Home Affairs, according to which the benefit of O.M. dated 28.12.1983 read with O.M. dated 29.10.1986 is to be extended to BSF, CRPF & CISF personnel posted and serving in North Eastern Region having their Headquarters in that region. The respondents submitted an application regarding sanction of Special (Duty) Allowance.

The respondent case was that he is posted in North Eastern Region and is entitled to Special (Duty) Allowance he being posted in unit Johrat in Assam. The representation was replied by letter dated 15.04.2005 of office of the commandant stating that since Headquarter of Personnel is in Shivpuri/Gwalior, hence, person is not entitled for Special (Duty) Allowance. Letter from Deputy Inspector General of Police dated 11.07.2005 was sent to the Commandant, CRPF, informing that although Director General by his letter dated 12.03.1992 has sent proposal to Ministry of Home Affairs that Special (Duty) Allowance should be given to all the battalions whose Headquarters are not in the North East but the battalions are deployed in the North East. It was further stated that the consent of Ministry of Home Affairs has not yet been received. On 3rd August 2005, Government of India, Ministry of Home Affairs issued an order on the subject:

“No. AI3/ InstAccts3/ PFIII

Government of India

Ministry of Home Affairs

North Block, New Delhi

Dated, the 3rd August, 2005

OFFICE MEMORANDUM

SUB: ALLOWANCE AND FACILITIES FOR CIVILIAN EMPLOYEES OF THE CENTRAL GOVERNMENT SERVING IN THE STATES AND UNION TERRITORIES OF NORTH EASTERN REGION, ANDAMAN AND NICOBAR ISLANDS AND LAKSHADWEEP.”

3. The Order clarified that allowance to be admissible to the personnel who were actually working in the North East Region. The respondents filed Original Application No.778 of 2006 before Central Administrative Tribunal claiming grant of Special (Duty) Allowance as per the Order dated 14.12.1983. The Central Administrative Tribunal by its judgment and Order dated 05.11.2007 directed for sanction of Special (Duty) Allowance to the applicants for the period they have actually worked in the North Eastern Region. Against the Order of Tribunal, appellant filed a Writ Petition in Allahabad High Court which was dismissed on 14.02.2008 aggreived against which Order the present appeal has been filed.

4. The issue in this appeal is a very limited issue i.e. whether the respondents were entitled for Special (Duty) Allowances for the period during which they were posted in North Eastern Region from the date of their posting in the North Eastern Region or only with effect from 03.08.2005 when the Office Memorandum was issued by the Government of India which allowed the claim of CPF personnels.

5. Learned Counsel for the appellant submits that the claim of respondents for Special (Duty) Allowance was earlier rejected since, although they were working in the North East Region but their Headquarters were in Shivpuri/Gwalior. He submits that by Government Order dated 03.08.2005 it was decided to extend benefits to all whether their Headquarters are in North Eastern Region or not. Thus, he submits that the respondents were entitled for Special (Duty) Allowance only with effect from 03.08.2005. Both Tribunal and the High Court committed an error in directing for payment of Special (Duty) Allowance to the respondents for the entire period when they were posted in the North Eastern Region. The respondents were not eligible for Special (Duty) Allowance since as when they were deployed in the North Eastern Region their Headquarters were situated outside of North Eastern Region.

6. The submissions are refuted by learned counsel appearing for the respondents. It is contended that Special (Duty) Allowance was granted to those who were employed in North Eastern Region. There is no dispute that respondents were posted in North Eastern Region. Their claim could not have been denied on the ground that although their battalions were posted in North Eastern Region but their Headquarters were out of North Eastern Region. He submits that the Government Order dated 03.08.2005 is clarificatory which makes it clear that all personnels who were posted in North Eastern Region were entitled for the benefits as per the O.M. dated 14.12.1983 read with O.M. dated 29.05.2002.

7. The Office Memorandum dated 03.08.2005 is to the following effect:

” No. AI3/ InstAccts3/ PFIII

Government of India

Ministry of Home Affairs

North Block, New Delhi

Dated, the 3rd August, 2005

OFFICE MEMORANDUM

SUB: ALLOWANCE AND FACILITIES FOR CIVILIAN EMPLOYEES OF THE CENTRAL GOVERNMENT SERVING IN THE STATES AND UNION TERRITORIES OF NORTH EASTERN REGION, ANDAMAN AND NICOBAR ISLANDS AND LAKSHADWEEP.

I am directed to refer to the Ministry’s letter no.II-27012/31/85FPII dated 31.03.1987 vide which the CPF personnel posted in the North Eastern Region and not having their Headquarter in the North Eastern Region were not getting Special (Duty) Allowance because of condition that the Headquarters of such personnel should also be in North East.

2. The matter has since been examined in consultation with Ministry of Finance and it has been decided to consider and allow the claim of CPF personnel delpoyed in North East Region in the light of criteria laid down in Finance Minsitry’s O.M.No.20014/3/83EIV dated 14.12.1983 read with their O.M.No.11(5)/97EII( B) 8 dated 29.05.2002. It is also clarified that the allowance would be admissible only to the personnel who are actually working in the North East Region.

3. The issues with the concurrence of Ministry of Finance, Deptt. of Expenditure, EII( B) Branch vide UO No. 315/05 dated 10.08.2005 and integrated Finance Division of this Ministry vide their Dy. No.748/Fin.11/05 dated 03.08.2005. Sd/( Ranjanesh Sahai) Director(Police Finance)”

8. Paragraph 2 of the Office Memorandum indicates that it was decided to allow the claim of CPF personnels deployed in North Eastern Region in the light of criteria laid down in Office Memorandum dated 14.12.1983 read with Office Memorandum dated 29.05.2002. It was further clarified that allowance would be admissible only to the personnels who were actually working in the North Eastern Region.

9. The issue is to whether the benefit of the above Office Memorandum is to be given with effect from 03.08.2005 only or the benefit of Special (Duty) Allowance is admissible after Office Memorandum dated 14.12.1983 was decided to be extended to CRPF personnels in the year 1987. The main Office Memorandum by which Special (Duty) Allowance was decided to be granted is dated 14.12.1983. The purpose and object for granting the said benefit is explained in opening paragraph of Office Memorandum which is to the following effect: “

The need for attracting and retaining the services of competent officers of service in the North Eastern Region comprising the State of Assam, Meghalaya, Manipur, Nagaland and Tripura and the Union Territories of Arunachal Pradesh and Mizoram has been engaging the attention of the Government for some time. The Government had appointed a Committee under the Chairmanship of Secretary, Department of Personnel & Administrative Reforms, to review the existing allowances and facilities admissible in the various categories of Civilian Central Government employees serving in this region and to suggest suitable improvements. The recommendations of the Committee have been carefully considered by the Government and the President is now released to decide as following….”

10. Further, Special (Duty) Allowance is sanctioned 10 by same Office Memorandum which is to the following effect: “(iii) Special (Duty) Allowance:Central Government civilian employees who have AllIndia transfer liability will be granted a Special (Duty) Allowance at the rate of 25 per cent of basic pay subject to a ceiling of Rs.400/per month on posting to any station in the North Eastern Region…..”

11. A perusal of the aforesaid clearly indicates that genesis of grant of Special (Duty) Allowance was posting of person in North Eastern Region. The said benefits were extended to attract and retain the services of the competent officers serving in North Eastern Region.

12. There is no dispute that the said benefit was extended to CRPF personnels also. The benefit as extended by Office Memorandum dated 14.12.1983 was revised from time to time and by 29.08.1986 revised orders were issued with effect from 01.10.1986, benefit of which orders was claimed in the claim petition filed by the respondents before the Tribunal.

13. A perusal of the letter dated 15.04.2005 (AnnexureP5) indicates that only reason for denying the Special (Duty) Allowance to the respondents was that their Headquarters were in Shivpuri/Gwalior i.e. out of North Eastern Region although there was no denial that their posting was in North Eastern Region.

14. The purpose and object of granting the benefit as noticed above was to reward the persons who are posted in the North Eastern Region. The Tribunal has directed for granting the benefit to the respondents for the period they have actually worked in the North Eastern Region. When the basis for granting Special (Duty) Allowance was posting in North Eastern Region, we fail to see that how the respondents who were posted in the North Eastern Region would have been denied the Special (Duty) Allowance on the ground that their Headquarters are in Shivpuri/Gwalior. The benefit is attached to their posting in the North Eastern Region and denial on the ground that their 12 Headquarters are in Shivpuri/Gwalior has no nexus with their claim. The Tribunal has allowed that claim which has been affirmed by the High Court.

15. Much emphasis has been given by the counsel for the appellant that Order dated 03.08.2005 has prospective application only and the benefit could have given only with effect from 03.08.2005 by which period some of the respondents were posted out of North Eastern Region.

16. A perusal of the Order dated 03.08.2005 does not indicate that the said benefit was intended only after 03.08.2005. Paragraph 2 of the order uses the words “it is clarified that allowance would be admissible to the personnels who are actually working in the North East Region”. The Order issued by the Government was clarificatory in nature.

17. We have already noticed that by Government Order dated 31.03.1987 Special (Duty) Allowance was extended to CRPF personnel posted and serving in North East Region who had their Headquarters also in that region. Obvious inference was that those 13 personnel posted and serving in North East Region whose Headquarters were not in that region were not entitled to the benefit. Whether such classification for extending the benefit to one class of personnel who were both posted and serving there and had their Headquarter there and those personnels who were posted and serving there and having their Headquarter outside the North East Region is valid or not and passes the test of equality before law under Article 14 is the question also needs to be considered.

18. Article 14 does not prohibit reasonable classification but for passing test of permissible classification there are two conditions which have been time and again laid down and reiterated. It is useful to refer to the Constitution Bench judgment of this Court in AIR 1955 SC 191, Budhan Choudhary versus State of Bihar. In paragraph 5, following has been laid down:”

5….It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, 14 however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure…”

19. Another judgment which needs to be noticed with regard to Article 14 is a judgment of this Court in AIR 1970 SC 1453, Harakchand Ratanchand Banthia and others vs. Union of India and others. In paragraph 23, following has been laid down:

“23….When a law is challenged as violative of Article 14 of the Constitution it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by it. Having ascertained the policy and object of 15 the Act the Court has to apply a dual test in examining its validity (1) whether the classification is rational and based upon an intelligible differentia which distinguishes persons or things that are grouped together from others that are left out of the group and (2)whether the basis of differentiation has any rational nexus or relation with its avowed policy and object…”

20. When we apply the ratio as laid down above we find that there is no intelligible differentia between two classes of employees posted and serving in North East Region as noted above. The policy of law as is clear from the original Government Order dated 14.12.1983, it is clear that Government came with the scheme of Special (Duty) Allowance with the object and purpose of encouraging, attracting and retaining the services of the officers in the North Eastern Region. To differentiate the employees in two categories i.e. (i) whose Headquarters are within North Eastern Region and (ii) whose Headquarters are outside the North Eastern Region, clearly indicate that classification is not founded on any intelligible differentia.

21. Further the differentia has no rational relation to the object sought to be achieved. When the purpose is to encourage and retain the personnel in North Eastern Region to deny the benefit of Special (Duty) Allowance to those who although posted and serving in North Eastern Region have their Headquarter outside the North East Region does not have any rational nexus with object sought to be achieved.

22. The classification as made in the Government Order dated 31.03.1987 does not pass the twin test as noted above. The Government having itself realised the error has corrected the same by Government Order dated 03.08.2005 permitted the Special (Duty) Allowance to all who are posted and serving in North East Region irrespective of the facts as whether their Headquarters are within the North Eastern Region or outside the North Eastern Region.

23. When the earlier classification as envisaged by Government Order dated 31.03.1987 itself not been valid to deny the benefit to those who were entitled to the Special (Duty) Allowance on the ground that Government came with the clarification only on 03.08.2005 shall neither be equitable nor shall stand the test of equality before the law.

24. When the denial as noted above did not pass the twin test of valid classification and was unconstitutional to deny the said benefit on the premise that Government corrected its error only on 03.08.2005, hence, with effect from 03.08.2005 only the benefit should be given does not appeal to reason.

25. In view of foregoing discussions, we do not find any ground to interfere with the judgment of the High Court. In the result, the appeal is dismissed.

J. (ADARSH KUMAR GOEL)

J. (ASHOK BHUSHAN)

NEW DELHI,

JULY 02, 2018

State Of M.P. vs Mangilal Sharma[ALL SC 1997 DECEMBER]

May 13, 2018Advocatetanmoy

KEYWORDS:- declaratory decree- EXECUTION-

DATE :- 18 December, 1997

Respondent could not have sought execution of the declaratory decree when no relief was granted to him towards arrears of salary and other consequential benefits.

ACT:- SECTION 34 SPECIFIC RELIEF ACT

Supreme Court of India

State Of M.P. vs Mangilal Sharma

Equivalent citations: AIR 1998 SC 743, 1998 (1) ALT 11 SC, 1998 (1) CTC 271, JT 1997 (10) SC 345, (1998) ILLJ 995 SC, (1998) IIMLJ 27 SC, 1997 (7) SCALE 781, (1998) 2 SCC 510, 1997 Supp 6 SCR 662, 1998 (1) UJ 160 SC

Author: D Wadhwa

Bench: S V Manohar, D Wadhwa

JUDGMENT D.P. Wadhwa, J.

1. State of Madhya Pradesh has come in appeal against the judgment dated April 29, 1988 of the Division Bench of the Madhya Pradesh High Court dismissing its writ petition filed under Articles 226 and 227 of the Constitution. The writ petition had been filed challenging the order of the Civil Judge, Neemuch executing a declaratory decree and that of the Additional District Judge, Mandsore upholding in revision the order of the Civil Judge. This Court while granting special leave petition had stayed the operation of the impugned order of the High Court as well as that of the Executing Court.

2. The respondent was employed as a Clerk Grade I in the Irrigation Department of the appellant and was posted at Gandhi Sagar. He was transferred to Jabalpur. He handed over his charge at Gandhi Sagar. Respondent represented that due to acute illness of his father he might be transferred to Mandsore, a place near his home town to enable him to look after his father. His request was not acceded to. This led the respondent to submit his resignation. He was not informed if the resignation had been accepted. There was some correspondence in late sixties but there was no clear reply from the appellant if resignation of the respondent had been accepted. All this period the respondent did not join his duty and remained present at his home town. This led the appellant to assume that the respondent had voluntarily resigned from his service as he continuously remained absent from his place of taking over the charge of his post for more than live years. Thus, according to the appellant the services of the respondent stood terminated. The respondent sometime in 1979 filed a suit for declaration against the appellant that he continued to be in service which was decreed on October 1, 1982 by the Civil Judge, Class-II, Neemuch. The decree passed in favour of the respondent is as under :

“It is ordered and decreed that – (a) Plaintiffs suit is decreed with costs and this is declared that plaintiff is still in continuance, service of defendant and his services are not terminated. Defendant will also bear the cost of the suit of the plaintiff along with its own cost and that the sum of Rs. 63.50 be paid by the defendant to the plaintiff on account of costs of this suit with interest thereon at the rate of (illegible) percent per annum from this date to date of realization.

Given under my hand and the seal of Court this 1st day of October 1982.

Sd/ A.H. Sheikh Patel Civil Judge-Class II Neemuch – (M.P.)”

3. Against the judgment and decree of the Civil Judge the appellant filed an appeal before the District Judge, Mandsoe which was dismissed and the second appeal in the High Court was also dismissed by the judgment dated April 26, 1986. The respondent, decree-holder, then filed an execution application in the court of the Civil Judge, Neemuch. This was to the effect that the respondent be awarded all the consequential benefits, salary, dearness allowances, promotion etc. of the service and also cost of the application. The appellant opposed the application on the grounds that the court did not pass any decree of reinstatement of the decree holder on the post or for payment of any salary to him and that in the suit the decree holder had not prayed for reinstatement and for arrears of his salary. It was also submitted before the executing court by the appellant that since the decree holder had remained absent from his duly, he was not entitled to any salary on the basis of the principle of “no work no salary”. The objections filed by the appellant, it would appear, were dismissed by the executing court. A revision against that order was also dismissed by the Additional District Judge, Neemuch by order dated January 11, 1988. The appellant then filed a writ petition in the High Court of Madhya Pradesh which, as noted above, was dismissed. This led the appellant to come to this Court.

4. It appears to us that the courts below did not go by even the basic principles of law. A suit for mere declaration to any legal character is maintainable under Section 34 of the Specific Relief Act 1963, though it has been held that section is not exhaustive. There is a proviso to the section which bars any such declaration where the plaintiff, being able to seek further relief, omits to do so. Section 34, in relevant part, is as under:

“34. Discretion of court as to declaration of status or right. – Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.”

5. Normally in a case like the present one the plaintiff when seeking relief of declaration that he continues to be in service would also seek consequential reliefs of reinstatement and arrears of salary. This the respondent as plaintiff did not do so as the Government not being a private employer would certainly respect a mere decree of declaration. This in fact the appellant did and the respondent has been reinstated. Moreover, once the Government servant is appointed to his post or office, he acquires a status and his rights and obligations are no longer determined by consent of both parties but by statute or statutory Rules which may be framed by the Government. The legal position of a Government servant is more one of status than of contract. In Roshan Lal Tandon v. Union of India, , this Court observed that the hall-mark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties and that the emoluments of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is, therefore, quite clear that the appellant has rightly reinstated the respondent in service as the decree gave a declaration to his legal status of having remained a Government servant throughout as if the order of termination of service never existed. It was not necessary for the respondent to seek relief of arrears of salary in a suit for declaration as he may be satisfied with a mere relief for declaration that he continues to be in service. Of course if he afterwards claims arrears of salary in a suit for the period prior to the relief of declaration he may face the bar of Order II Rule 2 of the CPC.

6. A declaratory decree merely declares the right of the decree holder vis-a-vis the judgment debtor and does not in terms direct the judgment debtor to do or refrain from doing any particular act or thing. Since in the present case decree does not direct reinstatement or payment of arrears of salary the executing court could not issue any process for the purpose as that would be going outside or beyond the decree. Respondent as a decree holder was free to seek his remedy for arrears of salary in the suit for declaration. The executing court has no jurisdiction to direct payment of salary or grant any other consequential relief which does not How directly and necessarily from the declaratory decree. It is not that if in a suit for declaration where the plaintiff is able to seek further relief he must seek that relief though he may not be in need of that further relief. In the present suit the plaintiff while seeking relief of declaration would certainly have asked for other reliefs like the reinstatement, arrears of salary and consequential benefits. He was however, satisfied with a relief of declaration knowing that the Government would honour the decree and would reinstate him. We will therefore assume that the suit for mere declaration filed by the respondent-plaintiff was maintainable, as the question of maintainability of the suit is not in issue before us.

7. Mr. Gambhir, learned counsel for the respondent, has been unable to show as to how a decree for declaration which the respondent got could at all be executable. It was, therefore, submitted by him that once the court gave a declaration about the legal status of the respondent that he was still in continuance of service of the appellant and his services were never terminated, the necessary consequence would be that the respondent should be granted arrears of salary and other consequential benefits by the appellant unlike in a case which was governed by law of contract between the parties. It is difficult to accept this proposition as the provisions of law contained in Section 34 of the Specific Relief Act are specific and in that case even declaration could not have been granted as it could be said that respondent was able to seek further relief then a mere declaration of his legal status and which he omitted to do so. In State of Punjab and Others v. Krishan Dayal Sharma, the plaintiff obtained a decree that he was entitled to be promoted from the post of Inspector of Police to that of Deputy Superintendent of Police with effect from the date when his juniors were promoted and further claimed relief for all consequential benefits, rights and privileges. The suit was decreed and in the execution application filed by the plaintiff in addition to the benefits flowing from the decree, he also claimed compound interest at the rate of 12% per annum on the amount found due to him. The claim of interest was allowed by the executing court. This Court noticed that the decree which was put to execution did not contain any order or direction for the payment of any interest on the amount which was payable to the decree holder’consequent to the declaration made by the Court decreeing a suit. It was also not disputed that no relief for interest had been claimed by the decree holder in his suit nor any such claim was discussed or Awarded by the Court decreeing the suit. This Court held that the executing court was bound by the terms of the decree and could not add or alter the decree on its notion of fairness or justice. The Court further observed that no doubt the Courts had power to award interest on the arrears of salary or pension or other amount to which a Government servant was found entitled to having regard to the facts and circumstances of the case but that power could not be exercised by the executing court in the absence of any direction in the decree. In Parkash Chand Khurana Etc. v. Harnam Singh and Others, one of the contentions raised by the appellants before this Court was that the award in question was merely declaratory of the rights of the parties and was, therefore, inexecutable. The Court observed as under:

“This contention is based on the wording of clause 7 of the award which provides that on the happening of certain events the respondents “shall be entitled to take back the possession”. We are unable to appreciate how this clause makes the award merely declaratory. It is never a pre-condition of the executability of a decree that it must provide expressly that the party entitled to a relief under it must file an execution application for obtaining that relief. The tenor of the award shows that the arbitrator did not intend merely to declare the rights of the parties. It is a clear intendment of the award that if the appellants defaulted in discharging their obligations under the award, the respondents would be entitled to apply for and obtain possession of the property.”

8. In Prakash Chand v. S.S. Grewal and Ors., [1975] Cr. LJ. 679, (Full Bench) (Punjab and Haryana High Court), the petitioner had a decree in his favour declaring his dismissal from service to be illegal, void and of no effect. The Punjab Government did not reinstate him nor paid him the arrears of salary. He, therefore, filed a writ petition for taking contempt of courts proceedings against certain officials of the Stale Government. The Court held as under :

“A declaratory decree, in my opinion, cannot be executed as it only declares the rights of the decree-holder qua the judgment-debtor and does not in terms, direct the judgment- debtor to do or to refrain from doing any particular act or thing. Since there is no command issued to the judgment-debtor to obey, the civil process cannot be issued for the compliance of that mandate or command. The decree-holder is free to seek his legal remedies by way of suit or otherwise on the basis of the declaration given in his favour.”

9. In our view, it is a correct statement of law except that it may not be fully applicable in the case of a Government servant who acquires a status and his service conditions are governed by statutory rules as noticed above.

10. We are, therefore, of the opinion that the courts below did not exercise their jurisdiction properly and the respondent could not have sought execution of the declaratory decree when no relief was granted to him towards arrears of salary and other consequential benefits.

11. The appeal is allowed with costs, impugned order of the High Court as well as orders of the courts below are set aside and the execution application filed by the respondent is dismissed.

Union of India and Others Vs. Chaman Rana[ ALL SC 2018 MARCH]

April 6, 2018Advocatetanmoy

KEYWORDS:- retrospective promotion-

DATE:-March 12, 2018.

Belated retrospective promotion denied

SUPREME COURT OF INDIA

Union of India and Others Vs. Chaman Rana

[Civil Appeal No(S). 2764 of 2018 arising out of SLP (C) No.1123 of 2018]

Union of India and Others Vs. Gulshan Kumar Sharma

[Civil Appeal No(S).2763 of 2018 arising out of SLP (C) No.1118 of 2018]

NAVIN SINHA, J.

1. Leave granted.

2. These two appeals arise from a common order dated 05.05.2017, directing retrospective consideration for promotion of the respondents to the post of second-in-command and Commandant respectively, in the Border Security Force (BSF), from the date that their juniors had been promoted, along with all consequential benefits.

3. The respondents in the two writ petitions were superseded in the years 1996 and 2000, respectively. Both of them were subsequently promoted on 28.11.1997 and 16.06.2003 as second-in-command and Commandant respectively. Subsequently, both of them submitted several representations for promotion from the date of supersession. Orders rejecting the representations, along with reasons, were duly communicated to them more than once. After the pronouncement in Sukhdev Singh vs. Union of India & ors., (2013) 9 SCC 566 affirming Dev Dutt vs. Union of India & ors., (2008) 8 SCC 725, separate writ petitions were filed by them on 25.09.2016. The common plea taken was that the entry ‘good’ in their annual confidential reports (ACRs) for the relevant years was an adverse remark in view of the benchmark of ‘very good’. Since the adverse entry had not been communicated to them, it could not be taken into consideration, requiring reconsideration for promotion from the date of supersession.

4. Learned counsel for the appellants submitted that the claims of the respondents were highly belated and stale. The writ petitions ought to have been dismissed on the ground of delay and laches. Specific objection had been taken in the counter affidavit, including the cascading effect that it would have had upon those promoted earlier to the respondents, and which would lead to administrative chaos. Mere filing of representations or a subsequent judgement, could not be sufficient justification to entertain such belated claims, dehors the facts of a case. The High Court ought not to have given directions to consider their candidature with retrospective effect.

5. Learned counsel for the respondents submitted that enunciation of law by this Court will always have to be given retrospective effect, unless it is made prospective specifically. The grading ‘good’ in the facts of the case was adverse as the benchmark for promotion was ‘very good’. In view of the law laid down in Dev Dutt (supra) as affirmed in Sukhdev Singh (supra), it was mandatory for the appellants to have communicated such adverse remarks to the respondents. In absence of such communication, these remarks could not have been considered to deny promotions. The respondents were genuinely and bonafide pursuing their grievances before the authorities themselves, hoping that they would see reason, and only when they realised that relief would not be forthcoming otherwise, they approached the High Court ultimately.

6. We have considered the submissions on behalf of the parties. The only question for consideration is the applicability of the law as declared in Dev Dutt (supra) and affirmed in Sukhdev Singh (supra) to the respondents in the facts and circumstances of the present case.

7. The benchmark for promotion to the posts in question under the BSF (Seniority, Promotion and Superannuation of Officers) Rules of 1978, as prescribed in paramilitary Promotion DO letter dated 25.11.1988 was modified on 08.05.1990 from ‘Good’ to ‘Very Good’. The respondent Chaman Rana, a Deputy Commandant was considered for promotion to the rank of second-in-command at the departmental promotion committee (DPC) meeting held on 13.09.1996 but could not make the grade in view of the criteria prescribed in DO letter dated 08.05.1990. The respondent represented on 20.02.1997 against his supersession. An order of rejection with reasons was communicated to him on 25.03.1997. The cause of action had, therefore, accrued to seek relief before a court of law. Nonetheless, a repeat representation was made on 31.07.1997, and a reasoned rejection was again communicated on 07.05.1998. In the meantime, the respondent was empanelled to be considered for promotion to the rank of second-in-command by the DPC held in the year 1997, and he was promoted as such on 28.11.1997. A cause of action again accrued to the respondent for approaching the Court for relief but he again represented on 30.06.1998, followed by further representations on 14.09.1998, 22.08.2000, 22.08.2006. A fresh reasoned order of rejection was again communicated on 16.05.2007. Repeat representations followed on 28.08.2012, 07.11.2015 and 20.11.2015 after which the writ petition came to be instituted.

8. Likewise, the respondent Gulshan Kumar Sharma was considered for promotion as Commandant in the years 20002001 and 20012002 by the DPC but was superseded as he failed to secure the benchmark. He represented on 25.10.2001 and was informed on 09.01.2002 that he had failed to secure the benchmark. The cause of action to approach the Court for grant of relief had accrued to the respondent but he again represented on 18.03.2002.

An order of rejection along with reasons was again communicated to him on 01.09.2004. After he was promoted as Commandant on 16.06.2003, instead of approaching the Court, he again represented on 04.05.2005, followed by another representation on 08.01.2007. A reasoned order of rejection was again communicated to him on 17.04.2008. This was followed by further representation on 11.08.2009 which was again rejected on 02.09.2009 allegedly communicated on 01.01.2016. A further representation dated 03.08.2015 was also rejected on 27.11.2015. The writ petition then came to be instituted.

9. Manifestly, the cause of action first arose to the respondents on the date of initial supersession and again on the date when rejection of their representation was communicated to them, or within reasonable time thereafter. Even if the plea based on Dev Dutt (supra) be considered, the cause of action based thereon accrued on 12.05.2008. There has to be a difference between a cause of action and what is perceived as materials in support of the cause of action. In service matters, especially with regard to promotion, there is always an urgency.

The aggrieved must approach the Court at the earliest opportunity, or within a reasonable time thereafter as third party rights accrue in the meantime to those who are subsequently promoted. Such persons continue to work on the promotional post, ensconced in their belief of the protection available to them in service with regard to seniority. Any belated interference with the same is bound to have adverse effect on those already promoted affecting their morale in service also. Additionally, any directions at a belated stage to consider others for promotion with retrospective effect, after considerable time is bound to have serious administrative implications apart from the financial burden on the government that would follow by such orders of promotion.

10. As far back as in P.S. Sadasivaswamy vs. The State of Tamil Nadu, (1975) 1 SCC 152, considering a claim for promotion belated by 14 years, this Court had observed that a period of six months or at the utmost a year would be reasonable time to approach a court against denial of promotion and that it would be a sound and wise exercise of discretion not to entertain such claims by persons who tried to unsettle the settled matters, which only clog the work of the court impeding it in considering genuine grievances within time in the following words :”

2….. A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters.

The petitioner’s petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant’s petition as well as the appeal.”

11. Mere repeated filing of representations could not be sufficient explanation for delay in approaching the Court for grant of relief, was considered in Gandhinagar Motor Transport Society vs. State of Bombay, A.I.R. 1954 Bombay 202, by Chief Justice Chagla, observing as follows :

“(2)…… Now, we have had occasion to point out that the only delay which this Court will excuse in presenting a petition is the delay which is caused by the petitioner pursuing a legal remedy which is given to him. In this particular case the petitioner did not pursue a legal remedy. The remedy he pursued was extralegal or extrajudicial. Once the final decision of government is given, a representation is merely an appeal for mercy or indulgence, but it is not pursuing a remedy which the law gave to the petitioner…”

12. The appellant, in its counter affidavit before the High Court, had specifically taken the objection that the claim was highly belated, and that any direction for a retrospective consideration would have a destabilising effect in unsettling the settled position which would lead to complete chaos apart from other administrative consequences. The High Court failed to consider the objection. In Union of India vs. M.K. Sarkar, (2010) 2 SCC 59, this Court observed as follows:”

16. A court or tribunal, before directing ‘consideration’ of a claim or representation should examine whether the claim or representation is with reference to a ‘live’ issue or whether it is with reference to a ‘dead’ or ‘stale’ issue. If it is with reference to a ‘dead’ or ‘stale’ issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration….”

13. In Dev Dutt (supra), the DPC was held on 16.12.1994. The appellant therein, aggrieved by his supersession moved the High Court with utmost expedition leading to the pronouncement by the Single Judge on 21.08.2001 and by the Division Bench on 26.11.2001. The appeal was instituted before this Court in the year 2002. If that were not sufficient to distinguish the case of the respondents, reference may also be made to the observations in paragraph 36 as follows:

“36. In the present case, we are developing the principles of natural justice by holding that fairness and transparency in public administration requires that all entries (whether poor, fair, average, good or very good) in the annual confidential report of a public servant, whether in civil, judicial, police or any other State service (except the military), must be communicated to him within a reasonable period so that he can make a representation for its upgradation.”

14. The High Court erred in placing absolute reliance on Dev Dutt (supra) and Sukhdev (supra) without noticing the fact situation of the respondents. In Union of India and another vs. Major Bahadur Singh, (2006) (1) SCC 368, it was observed:”

9. The courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of the courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of the courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments….”

15. A subsequent pronouncement by this Court could not enthuse a fresh lease of life, or furnish a fresh cause of action to what was otherwise clearly a dead and stale claim. In State of Uttaranchal vs. Shiv Charan Singh Bhandari, (2013) 12 SCC 179, it was observed that :”

29…. Not for nothing, has it been said that everything may stop but not the time, for we are all slaves of time. There may not be any provision providing for limitation but a grievance relating to promotion cannot be given a new lease of life at any point of time.”

16. The observations with regard to the modus operandi of the representation syndrome to revive what are clearly dead and stale claims as discussed in C. Jacob vs. Director of Geology and Mining, (2008) 10 SCC 115, and the caution to be exercised by the Court are also considered apposite in the facts of the present case.

17. In the facts and circumstances of the present case, any direction to consider retrospective promotion of the respondents at such a belated passage of time of over 17 to 20 years, would virtually bring a tsunami in the service resulting in administrative chaos quite apart from the financial implications for the government. The order of the High Court is therefore held to be unsustainable and is set aside.

18. Both the appeals are allowed for the aforesaid reasons.

J. (Arun Mishra)

J. (Navin Sinha)

New Delhi,

March 12, 2018.

Bhupendra Kumar Chimanbhai Kachiya Patel Vs. Divisional Controller GSRTC Nadiad[ALL SC 2018 MARCH]

March 20, 2018March 20, 2018Advocatetanmoy

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]

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

January 5, 2018Advocatetanmoy

KEYWORDS:-violation of the principles of natural justice-

Capture

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

Assam District and Sessions Judges Establishment (Ministerial) Services Rules, 1987

December 2, 2017Advocatetanmoy

Notification No. JDJ. 282/84/123, dated 26th October, 1987.
1. Short title and commencement.
2. Definitions.
3. Service.
4. Status of the service.
5. Strength of Service.
6. Recruitment.
7. Conditions of eligibility.
8. Reservation.
9. Gradation list.
10. Confirmation.
11. Discharged or reversion before confirmation.
12. Seniority.
13. Right of appeal.
14. Pay.
15. Leave, pension, etc.
16. Power to dispense with or relax any rule.
17. Establishment of Special Judge.
18. Interpretation.
19. Power of transfer.

The Assam District and Sessions Judges Establishment (Ministerial) Services Rules, 1987

In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Assam is pleased to make the following Rules regulating recruitment and conditions of service of persons appointed to the Assam District and Sessions Judges Establishment (Ministerial) Service, namely:

Preliminary

1. Short title and commencement. – (1) These Rules may be called “The Assam District and Sessions Judges Establishment (Ministerial) Service Rules, 1987”.

(2) They shall come into force at once.

2. Definitions. – In these Rules unless there is anything repugnant in the subject or context-

(1) “Appointing authority” means the District and Sessions Judge ;

(2) “District and Sessions Judge” means the District and Sessions Judge of the District;

(3) “District and Sessions Judges Establishment” means and includes all non-gazetted ministerial staff in the office of the District and Sessions Judge Additional District and Sessions Judge Assistant District and Sessions Judge, Special Judge and Munsiffs of the District;

(4) “Government” means Government of Assam;

(5) “Members of the Service” means a member of the Assam District ana Sessions Judges Establishment (Ministerial) Service;

(6) “Additional District and Sessions Judge” means officer appointed as such and holding the post under the Assam Judicial Service Rules, 1967;

(7) “Special Judge” means an officer appointed as such under the Criminal Law (Amendment) Act, 1953;

(8) “Assistant District and Sessions Judge” means an officer appointed as such and holding the post under the Assam Judicial Service Rules, 1967;

(9) “Munsiff” means an officer appointed as such and holding the post under the Assam Judicial Service Rules, 1967;

(10) “Service” means the Assam District and Sessions Judges Establishment (Ministerial) Service;

(11) “Year” means the English Calendar year; and

(12) “Board” means the Selection Board consisting of a Chairman and two other Members.

Cadre

3. Service. – (1) The Service shall comprise of the following categories of posts:

(i) Sheristadar of District and Sessions Judge

(ii) Sheristadar of Additional District and Sessions Judge.

(iii) Sheristadar of Assistant District and Sessions Judge.

(iv) Head Assistant.

(v) Supervisory Assistant/Sheristadar of Munsiff/Upper- Division Assistant.

(vi) Lower Division Assistant.

(2) Each of the categories of posts in sub-rule (1) shall form an independent Cadre. Members of a lower cadre shall have no claim for appointment to any of the higher cadres except in accordance with the provisions made in these rules.

4. Status of the service. – The Status of the members of the Service shall be that of class III non-gazetted ministerial service.

5. Strength of Service. – The number of posts, permanent as well as temporary, under each of the categories mentioned in sub-rule (1) of Rule 3 shall be such as may be determined by Government from time to time.

Recruitment

6. Recruitment. – Recruitment to the Service shall be made by the appointing authority according to the procedure laid down below:

(1) Sheristadar of District and Sessions Judge. – By selection from amongst the persons who must have served continuously as Sheristadar of Additional District and Sessions Judge or as Head Assistant in the District and Sessions Judges Establishment at least for 5 years.

(2) Head Assistant and Sheristadar of Additional District and Sessions Judge. – By selection from amongst the persons who must have served as Supervisory Assistant or a Sheristadar of Munsiff or a Sheristadar of Assistant District and Sessions Judge or Upper Division Assistant continuously for 3 years in the District and Sessions Judges Establishment.

Note. – For the purpose of promotion of Supervisory Assistant, Sheristadar of Assistant District and Sessions Judge, Sheristadar of Munsiff and Upper Division Assistant, the District and Sessions Judge shall prepare a select list at the beginning of each year taking into account the number of vacancies likely to occur during the year in question. The District and Sessions Judge shall associate the Additional District and Sessions Judge, Assistant District and Sessions Judge and Munsiff in the selection. The criterion for selection shall be on the basis of seniority-cum-merit and the Select list shall remain valid for one year from the date of recommendation of the Selection Board. It shall be reviewed after one year and all those eligible shall again be considered.

(3) Sheristadar of Assistant District and Sessions Judge, Supervisory Assistant, Sheristadar of Munsiff. – By promotion from amongst the Upper Division Assistants of the District and Sessions Judges Establishment (Ministerial) concerned on the basis of seniority-cum-merit who have rendered not less than 7 years of service in the District and Sessions Judges Establishment (Ministerial) concerned out of which at least 3 years shall be of continuous service as Upper Division Assistant on the 1st day of the year in which the promotion is made.

Note. – For the purpose of promotion of the Upper Division Assistant, the District and Sessions Judge shall prepare a select list at the beginning of each year taking into account the number of vacancies likely to occur during the year in question. The District and Sessions Judge shall associate the Additional District and Sessions Judge, Assistant District and Sessions Judge and Munsiff in the selection. The criterion for selection shall be on the basis of Seniority-cum-merit and the select list shall remain valid for one year from the date of recommendation of the Selection Board. It shall be reviewed after one year and all those eligible shall again be considered.

(4) Upper Division Assistant. – By promotion on the basis of seniority-cum-merit from amongst the Lower Division Assistants of the District and Sessions Judges Establishment who have rendered not less than 5 years of service on the 1st day of the year in which the promotion is made.

Note. – For the purpose of promotion the District and Sessions Judge shall prepare a select list at the beginning of each year taking into account the number of vacancies likely to occur during the year in question. The District and Sessions Judge shall associate the Additional District and Sessions Judge(s). Assistant District and Sessions Judges and Munsiffs in the selection. The criterion for selection shall be on the basis of seniority-cum-merit. The select list shall remain valid for one year. It shall be reviewed after one year and all those eligible shall again be considered.

(5) Lower Division Assistant. – (a) By direct recruitment on the basis of a competitive examination to be conducted by the District and Sessions Judge at the beginning of each year unless otherwise directed by Government in this behalf.

Note. – At the beginning of each calendar year the District and Sessions Judge shall call for applications to fill up up temporary vacancies of any kind of posts which are likely to occur in course of the year in their respective establishments. On receipt of applications by a specified date, a test shall be held and list of all candidates suitable for appointment to the posts of Lower Division Assistant shall be prepared in order of merit by the District and Sessions Judge. The list shall remain valid for one year unless it is extended earlier and one such list shall be prepared every year. The District and Sessions Judge shall make all appointments during the year from such a select list. The syllabus for such tests shall be as specified in the Schedule I.

(b) By selection strictly on the basis of merit from amongst the copyists, Typists of the District and Sessions Judges Establishment having educational qualifications as required for direct recruitment of Lower Division Assistants who have rendered not less than 7 years of service on the first day of the year in which the selection is made.

(c) By selection on the basis of seniority-cum-merit from amongst Grade IV staff of the District and Sessions Judges Establishment concerned who have passed the High School Leaving Certificate or equivalent examination and have rendered at least 7 years of continuous service in the District and Sessions Judges Establishment on the 1st day of the year in which selection is made.

Note. – (i) The proportion of vacancies to be filled up in any year according to Clauses (a), (b) and (c) of sub-rule (5) of this rule shall be 80 : 10 : 10 respectively. In the event of sufficient number of qualified or suitable persons not being available in category (b) and (c) the balance shall be made up from category (a), i.e. through direct recruitment. Here vacancies shall include both permanent and temporary vacancies.

(ii) Appointment by selection under Clauses (b) and (c) of sub-rule (5) of this rule shall be made by the District and Sessions Judge from amongst the eligible Grade IV staff.

7. Conditions of eligibility. – In order to be eligible for competing in the examination for appointment as Lower Division Assistant, a candidate must satisfy the following conditions:

(i) Nationality. – He must be a citizen of India.

(ii) Age limits. – He must not be less than 18 Years of age and more than 30 years of age on the first day of the year in which the examination is held:

Provided that in the case of candidates belonging to special categories, the upper age limit shall be subject to such relaxation as may be made by Government from time to time.

Explanation. – “Special categories” means persons belonging to Scheduled Castes/Scheduled Tribes, Political Sufferers, War Service candidates and such other persons or class of persons as may be notified by Government from time to time.

(iii) Educational Qualification. – He must have passed the High School Leaving Certificate Examination from a recognised University/Board or any examination declared equivalent thereto by the Government.

Note. – Pending conversion of all the existing Schools into Higher Secondary Schools and during the transitional period when both the old courses and the new courses continue together the instruction issued by Government from time to time in this regard shall be followed.

(iv) He must not have more than one wife living; provided the Government may for good and sufficient reasons exempt any candidate from the operation of this condition.

(v) No candidate shall be eligible for appointment if he, after undergoing such medical examination as Government may specify, is found to be not in good mental or bodily health and not free from any mental or physical defect likely to interfere in the discharge of his duties.

(vi) Inclusion of a candidate’s name in the list shall confer no right to appointment unless the appointing authority is satisfied after such enquiry as he may consider necessary that the candidate is suitable in all respects for appointment.

8. Reservation. – In all cases of appointment by direct recruitment as well as by promotion, there shall be reservation in case of candidates belonging to the member of Scheduled Caste/Scheduled Tribe as per provision of the Assam Scheduled Castes and Scheduled Tribes (Reservation of Vacancies in Services and Posts) Act, 1978 and Rules framed thereunder. There shall also be reservation for candidates belonging to Other Backward Classes including More Other Backward Classes as per Government Instructions contained in O.M. No. ABP. 338/83/14, dated 4-1-1984 for direct recruitment only. General orders in respect of reservation in favour of other categories of candidates as may be in force for the time being, shall also be followed.

9. Gradation list. – A gradation list of the staff of the amalgamated establishment shall be prepared every year and the same shall be approved by the District and Sessions Judge and published once a year.

Confirmation, Seniority, etc.

10. Confirmation. – (1) Subject to availability of a permanent vacancy every member of the service shall be confirmed in the grade to which he is appointed if he-

(a) has completed at least one year of service to the satisfaction of the appointing authority; and

(b) is considered fit for confirmation by the appointing authority.

(2) Subject to the aforesaid conditions, confirmation shall be made on the basis of seniority as determined under Rule 11.

11. Discharged or reversion before confirmation. – At any time before confirmation a member is liable to be reverted to his next lower rank or to a lower post on which he holds a lien or be discharged from the service in case he is a direct recruit, if he cannot qualify for such confirmation even after a second chance or if his performance of duty has not been satisfactory and/or if the appointing authority finds him otherwise unfit to hold the post.

12. Seniority. – (i) In the Lower Division Cadre, the seniority shall be according to the date of appointment, if the persons join the appointments within 15 days of the receipt of the order of appointment:Provided that in case a persons is prevented from joining within the said period of 15 days by circumstances of a public nature or for reasons beyond his control, the appointing authority may extend it for a further period of 15 days. If the period is not so extended, his seniority shall be determined in accordance with the date of joining. Where however more than one person are appointed on the same date their inter-se seniority shall be determined according to their position in the merit list prepared by the District and Sessions Judge as mentioned in Note below Clause (a) of sub-rule (5) of Rule 6:

Provided further that the inter-se-seniority among Lower Division Assistants appointed under Clauses (a), (b) and (c) of sub-rule (5) of Rule 6 on the same date shall be according to the following order:

(a) Assistants appointed under Clause (a) of sub-rule (5) of Rule 6.

(b) Assistants appointed under Clause (b) of sub-rule (5) of Rule 6

(ii) In the Upper Division (including Sheristadar of Munsiff) Cadre, the seniority shall be according to the position in the select list from which the promotion to posts of Upper Division Assistant is made.

(iii) In the Head Assistant Cadre, the seniority shall be according to the date of promotion to the post of Head Assistant.

(iv) In the Sheristadar of District Judge Cadre, the seniority shall be according to the date of appointment.

(v) If confirmation of a member of the service in a Cadre is delayed on account of his failure to qualify for such confirmation, he shall lose his position in order of seniority in that Cadre vis-a-vis such of his juniors as may be confirmed earlier than him. His original position in that particular Cadre shall, however, be restored on his confirmation subsequently.

13. Right of appeal. – Every member of the service shall have the right to appeal from the orders of the District and Sessions Judge to the Government, i.e., Secretary to the Government of Assam, Judicial Department.

14. Pay. – The scale of pay admissible to members of different cadres shall be as shown in Schedule II subject to such revision as may be made by Government from time to time.

Miscellaneous

15. Leave, pension, etc. – Except as provided in these rules, all matters relating to pay, allowances, leave, pension, discipline and other conditions of service shall be regulated by general rules framed by Government from time to time.

16. Power to dispense with or relax any rule. – Where the appointing authority is satisfied that the operation of any of these rules may cause undue hardship in any particular case,it may dispense with or relax the requirement of that rule to such extent and subject to such condition as it may consider necessary for dealing with the case in a just and equitable manner:Provided that the case of any person shall not be dealt with in any manner less favourable to him than that provided in any of these rules.

17. Establishment of Special Judge. – (1) The recruitment and conditions of service of the members of the Ministerial staff in the establishment of the Special Judge will be regulated mutatis-mutandis in accordance with these rules.(2) The Special Judge shall exercise the same powers as are vested in the District and Sessions Judge in relation to the Ministerial staff in his establishment.

18. Interpretation. – If any question arises relating to the interpretation of these rules, it shall be referred to the Government in the Judicial Department whose decision thereon shall be final.

19. Power of transfer. – The power of transfer and posting of staff from one District to another District vest with the Government in the Judicial Department.

20. Repeal and savings. – Any rules corresponding to these rules in force immediately before the commencement of these rules are hereby repealed.Notwithstanding such repeal any order made or any action taken under the rules so repealed shall be deemed to have been validly made or taken under the corresponding provisions of these rules.

Schedule I

[See Rule 6 (5)]

The syllabus for test for direct recruitment

	Subject	Marks
1.	General English	75
2.	Official Language	75
3.	Drafting (English and Official language)	100
4.	Interview	50
	Total	300

Schedule II

[See Rule 14]

	Post	Scale of pay
1.	Sheristadar of District Judge	Rs. 875-40-1075-EB-40-1275-45-1500/- p.m.
2.	Head Assistant	Rs. 700-30-850-EB-35-1200/- p.m.
3.	Sheristadar of Additional District and Sessions Judge	Rs. 700-30-850-EB-35-1200/- p.m.
4.	Sheristadar of Asstt. District and Sessions Judge	Rs. 675-25-800-EB-30-1100/- p.m.
5.	Supervisory Asstt./Sheristadar of Munsiff/Upper Division Assistant	Rs. 675-25-800-EB-30-1100/- p.m. (special pay of Rs. 30/- p.m. is allowed to Sheristadar of Munsiff and Supervisory Assistant).
6.	Lower Division Assistant	Rs. 470-12-530-EB-12-590-EB-15-680-20-800/- p.m.

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

November 30, 2017November 30, 2017Advocatetanmoy

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]

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

November 30, 2017November 30, 2017Advocatetanmoy

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]

Supreme Court of India

Belated retrospective promotion denied

Subject

Marks

1.

General English

75

2.

Official Language

75

3.

Drafting (English and Official language)

100

4.

Interview

50

Total

300

Schedule II

[See Rule 14]