Supreme Court Quarterly Digest On Service Law [Jan - Mar, 2023]

One Rank One Pension (OROP) - Supreme Court extends the time for Centre to disburse pension arrears for ex-servicemen under the OROP scheme. Indian Ex Service Movement v. Union of India, 2023 LiveLaw (SC) 264

It is trite law that courts would not prescribe the qualification and/or declare the equivalency of a course. Until and unless rule itself prescribes the equivalency, namely, different courses being treated alike, the courts would not supplement its views or substitute its views to that of expert bodies. Unnikrishnan C.V. v. Union of India, 2023 LiveLaw (SC) 256

Challenge to selection process - The criteria for evaluation of a candidate’s performance in an interview may be diverse and some of it may be subjective. However, having submitted to the interview process with no demur or protest, the same cannot be challenged subsequently simply because the candidate’s personal evaluation of his performance was higher than the marks awarded by the panel - Simply because the result of the selection process is not palatable to a candidate, he cannot allege that the process of interview was unfair or that there was some lacuna in the process. Tanvir Singh v. State of J&K, 2023 LiveLaw (SC) 253

Central Civil Services (Pension) Rules 1972; Rule 13 - Service rendered as casual / contractual cannot be said to be service rendered on a substantive appointment - Can't be counted towards qualifying services for pensionary benefits - The High Court has materially erred in observing that the contractual service would be qualified as service in a temporary capacity. Director General, Doordarshan Prasar Bharti Corporation v. Magi H. Desai, 2023 LiveLaw (SC) 248

Service of Employees in Zilla Parishad should be counted for seniority when ZP has been absorbed by Municipal Corporation. Maharashtra Rajya Padvidhar Prathamik Shikshak v. Pune Municipal Corporation, 2023 LiveLaw (SC) 229

Maharashtra Municipal Corporation Act, 1949 - Section 439 read with Clause (5) of Appendix IV - Service of employees in Zilla Parishad (ZP) should be counted for seniority when Zilla Parishad has been absorbed by Municipal Corporation. There is no dispute regarding the fact that Clause 5(c), including its first proviso, occupies this field of law till date. The provision explicitly deals with protection of conditions of service of the officers and servants who were earlier employed in a local authority like a ZP, and who have been subsequently absorbed into a Municipal Corporation. It expressly protects their service rendered by them in the local authority before the appointed day and further provides that it shall be considered as service rendered in the Municipal Corporation itself. Given the existence of this unambiguous provision, the only logical conclusion is that the service rendered by Respondent Nos. 5 to 79 in the ZP has to be treated as service rendered in the PMC. Such service, therefore, has to be counted towards the determination of their seniority as well. (Para 21) Maharashtra Rajya Padvidhar Prathamik Shikshak v. Pune Municipal Corporation, 2023 LiveLaw (SC) 229

Pension - Supreme Court holds that the employees of Orissa Khadi and Village Industries Board are not entitled to pension on a par with Government employees - Employees of a body corporate created by the State cannot be treated as State Government employees in all respects. Such a corollary proposition would practically amount to merging of the Board with the State Government - Entitlement of pension will be as per the Regulations of the Board. (Para 16.1) State of Orissa v. Orissa Khadi and Village Industries Board Karmachari Sangh, 2023 LiveLaw (SC) 214

Payment for Home Guards - Home Guards working in the State of Odisha are entitled to Duty Allowance as per the minimum amount of pay to which the police personnel in the State is entitled to. It further clarified that the Home Guards shall be entitled to the periodical rise which may be available to the police personnel of the State and the Duty Allowance to be paid to the Home Guards should be periodically increased taking into consideration the minimum of the pay to which the Police personnel of the State are entitled considering periodical increase from time to time. (Para 9, 10) Prakash Kumar Jena v. State of Odisha, 2023 LiveLaw (SC) 213

Court can always test the extreme penalty of dismissal from service on the test of proportionality - Poor Line Mazdoor dismissed from service reinstated by Supreme Court invoking Article 142 of the Constitution. Eastern Coalfields Ltd. v Ajit Mondal, 2023 LiveLaw (SC) 209

Pension - The right to pensionary benefit is a constitutional right and as such cannot be taken away without proper justification - the grant of pensionary benefits is not a bounty, but a right of the employee, and as such cannot be denied without proper justification. (Para 11 & 12) R. Sundaram v. Tamilnadu State Level Scrutiny Committee, 2023 LiveLaw (SC) 207

Labour Disputes - Effective relief can be granted to a worker only if the permanent address of the workman is furnished in the pleadings - In future all the cases to be filed and in all the pending cases, the parties shall be required to furnish their permanent address(es) - Merely mentioning through Labour Union or authorised representatives, who are sometimes union leaders or legal practitioners, will not be sufficient - Service of notice of workman will have to be effected on the permanent address of the workman. Creative Garments Ltd. v. Kashiram Verma, 2023 LiveLaw (SC) 198 : AIR 2023 SC 1542

Government resolutions cannot override statutory rules - In service jurisprudence, the service rules are liable to prevail - There can be Government resolutions being in consonance with or expounding the rules, but not in conflict with the same. (Para 25) Ashok Ram Parhad v. State of Maharashtra, 2023 LiveLaw (SC) 196

Income Tax Appellate Tribunal Members (Recruitment and Conditions of Service) Rules, 1963; Rule 11 - Age of retirement of the Members of the Income Tax Appellate Tribunal (ITAT) - In terms of the provisions, a member of ITAT to continue in the post till the age of 62 years. Madras Bar Association v. Union of India, 2023 LiveLaw (SC) 178

The Supreme Court grants relief to ITAT member whose appointment was delayed for not filing income tax returns and allowed to continue in the post till the age of 62 years as per the provisions of the Income Tax Act 1961. Although she had applied in pursuance of a notification issued in 2013, she was given appointment only in 2018, as there was a dispute regarding non-filing of income tax returns by her with respect to the relevant assessment year (2010-11). In June 2017, the Calcutta High Court had granted her relief by holding that she cannot be excluded merely on the ground that she had not filed income tax returns. In the meantime, the Centre had brought in new rules for appointment to Tribunals, namely Tribunal, Appellate Tribunal and Other Authorities (Qualifications, Experience and Other Conditions of Service of Members) Rules 2017. The letter of appointment was issued to her in terms of the 2017 Rules, fixing her term as three years. The bench held that the right of the applicant to appointment had been crystallized even before the 2017 Rules. Therefore, the appointment of the applicant would be governed by the position as it existed prior to the 2017 Rules. In other words, her tenure shall be extended until she attains the age of 62 years. Madras Bar Association v. Union of India, 2023 LiveLaw (SC) 178

Compassionate Appointment - Principles summarized. (Para 7.2) State of West Bengal v. Debabrata Tiwari, 2023 LiveLaw (SC) 175 : AIR 2023 SC 1467

Compassionate Appointment - Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee. (Para 7.5) State of West Bengal v. Debabrata Tiwari, 2023 LiveLaw (SC) 175 : AIR 2023 SC 1467

Compassionate Appointment - Delay on the part of the authorities of the State to decide claims for compassionate appointment would no doubt frustrate the very object of a scheme of compassionate appointment. Government officials are to act with a sense of utmost proactiveness and immediacy while deciding claims of compassionate appointment so as to ensure that the wholesome object of such a scheme is fulfilled. (Para 14) State of West Bengal v. Debabrata Tiwari, 2023 LiveLaw (SC) 175 : AIR 2023 SC 1467

Compulsory retirement order can be set aside if it's found to be punitive & was passed to circumvent disciplinary proceedings. Captain Pramod Kumar Bajaj v. Union of India, 2023 LiveLaw (SC) 165

Supreme Court sets aside order of CBDT passed to compulsorily retire a gazetted officer-any exercise of power that exceeds the parameters prescribed by law or is motivated on account of extraneous or irrelevant factors or is driven by malicious intent or is on the face of it, so patently arbitrary that it cannot withstand judicial scrutiny, must be struck down -In such a case, this Court is inclined to pierce the smoke screen and on doing so, we are of the firm view that the order of compulsory retirement in the given facts and circumstances of the case cannot be sustained. The said order is punitive in nature and was passed to short-circuit the disciplinary proceedings pending against the appellant and ensure his immediate removal. The impugned order passed by the respondents does not pass muster as it fails to satisfy the underlying test of serving the interest of the public. (Para 34) Captain Pramod Kumar Bajaj v. Union of India, 2023 LiveLaw (SC) 165

Mere acquittal in a criminal case does not entitle an employee to reinstatement in service. Imtiyaz Ahmad Malla v. State of Jammu & Kashmir, 2023 LiveLaw (SC) 150 : AIR 2023 SC 1308

Appointment order of petitioner as constable of police cancelled as it was found that the the petitioner was involved in a criminal case and was under arrest for four days and he consciously concealed the said information - Mere acquittal does not entitle an employee to the reinstatement in service - If a person is acquitted or discharged, it cannot obviously be inferred that he was falsely involved, or he had no criminal antecedents - Director General being the highest functionary in the police hierarchy, was the best judge to consider the suitability of the petitioner for induction into the police force. Imtiyaz Ahmad Malla v. State of Jammu & Kashmir, 2023 LiveLaw (SC) 150 : AIR 2023 SC 1308

Judicial officer suppresses criminal case in application form; Supreme Court upholds termination, says subsequent closure of case irrelevant. Yogeeta Chandra v. State of Uttar Pradesh, 2023 LiveLaw (SC) 142

Judicial Service - Supreme Court upholds the termination of services of a judicial officer for not disclosing pendency of criminal case at the time of making application- Court notes that subsequent closure of the criminal case is immaterial when the candidate has made a dishonest suppression - The post which was applied by the appellant was a vey important post of judicial officer and therefore, it was expected of a person who applied for the judicial officer to disclose the true and correct facts and give full particulars as asked in the application form. If in the application form itself, she has not stated the true and correct facts and suppressed the material facts, what further things can be expected from her after she was appointed as a judicial office. (Para 6) Yogeeta Chandra v. State of Uttar Pradesh, 2023 LiveLaw (SC) 142

Departmental enquiry not necessary to terminate the services of a judicial officer on the ground of suppression of criminal case at the time of making application- It is not a case of termination of services for misconduct- t was the case of cancellation of the appointment on not disclosing the true and correct facts in the application form. Therefore, as rightly observed by the High Court, there was no question of holding any departmental enquiry under Article 311 of the Constitution of India. (Para 7) Yogeeta Chandra v. State of Uttar Pradesh, 2023 LiveLaw (SC) 142

Communicating annual confidential report to employee without sufficient time to challenge it same as non-communication of report. R.K. Jibanlata Devi v. High Court of Manipur, 2023 LiveLaw (SC) 139 : AIR 2023 SC 1190

Promotion in Services – Communicating grade awarded in Annual Confidential Report (ACR) – Uncommunicated ACR not to be considered for consideration of promotion – Whether ACR communicated with sufficient time to make representation against it be considered? – Held, ACR communicated one day before promotion committee was convened ought not to be considered since employee had 15 days’ time to make a representation against it – Further held, either the DPC could have been postponed or the ACR ought not to have been considered and the same ought to have been treated as uncommunicated ACR – Writ petition allowed. R.K. Jibanlata Devi v. High Court of Manipur, 2023 LiveLaw (SC) 139 : AIR 2023 SC 1190

Reducing cut-off marks after publication of results only to provide employment to a particular category violates Article 14. Sureshkumar Lalitkumar Patel v. State of Gujarat, 2023 LiveLaw (SC) 137

Selection Process - Reduction in cut-off marks to accommodate candidates whose seats were reserved due to horizontal reservation – Difference between qualification for making an application and eligibility criteria determined after examination is conducted – Present matter dealt with not the qualification for making an application, but the eligibility of candidates determined on the basis of cut-off marks – Held, eligibility determined after examination is conducted could not be disturbed. (Para 22) Sureshkumar Lalitkumar Patel v. State of Gujarat, 2023 LiveLaw (SC) 137

Selection Process - Whether advertisement made pursuant to notification could be changed – No amendment duly introduced – Modification on the advice of state government – An advertisement made pursuant to a notification would bind the parties – Had all the trappings of a statutory prescription unless it became contrary to either a rule or an act – Held, any change could only be introduced by way of an amendment and nothing else. (Para 23) Sureshkumar Lalitkumar Patel v. State of Gujarat, 2023 LiveLaw (SC) 137

Right of candidate to be considered in accordance with law – No vested right to advertised post Candidates had right to be considered for appointment to the post in accordance with law – Held, a law which enabled a candidate to get a post could not be changed to facilitate another group of persons, since the candidate acquired a vested right to be considered in accordance with law. (Para 24) Sureshkumar Lalitkumar Patel v. State of Gujarat, 2023 LiveLaw (SC) 137

Power of state government and selection committee to reduce cut-off marks after publication of results – Held, advertisement did not confer unbridled power either on state government or on selection committee to modify the selection process by reducing the qualifying marks after the results had already been published – Appeal allowed. (Para 26) Sureshkumar Lalitkumar Patel v. State of Gujarat, 2023 LiveLaw (SC) 137

Supreme Court rejects the petition filed by nine judicial officers from Andhra Pradesh for consideration for elevation as HC judges- Court holds that their service as ad-hoc judges cannot be reckoned for the purposes of Article 217(2)(a). (Para 8) C. Yamini v. High Court of Andhra Pradesh, 2023 LiveLaw (SC) 130 : AIR 2023 SC 1214

Different pay scale for seemingly similar posts are justifiable if there is a reasonable classification. Union of India v. Indian Navy Civilian Design Officers Association, 2023 LiveLaw (SC) 129

The doctrine “equal pay for equal work” is not an abstract doctrine and is capable of being enforced in a Court of Law, the equal pay must be for equal work of equal value. The equation of posts and determination of pay scales is the primary function of the Executive and not of the Judiciary. The Courts therefore should not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions. (Para 14) Union of India v. Indian Navy Civilian Design Officers Association, 2023 LiveLaw (SC) 129

It may be true that the nature of work involved in two posts may sometimes appear to be more or less similar, however, if the classification of posts and determination of pay scale have reasonable nexus with the objective or purpose sought to be achieved, namely, the efficiency in the administration, the Pay Commissions would be justified in recommending and the State would be justified in prescribing different pay scales for the seemingly similar posts. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues or frustration due to longer duration of promotional avenues is also an acceptable reason for pay differentiation. It is also a well-accepted position that there could be more than one grade in a particular service. The classification of posts and the determination of pay structure, thus falls within the exclusive domain of the Executive, and the Courts or Tribunals cannot sit in appeal over the wisdom of the Executive in prescribing certain pay structure and grade in a particular service. (Para 14) Union of India v. Indian Navy Civilian Design Officers Association, 2023 LiveLaw (SC) 129

If an employee is continued in service by the management of any registered minority Secondary School receiving Grant-in-Aid from the State-Government, then such school would not be entitled to receive any grant in respect of the expenditure incurred for continuing such employee beyond the stipulated superannuation age. State of Gujarat v. H.B. Kapadia Education Trust, 2023 LiveLaw (SC) 127 : AIR 2023 SC 1155

Employee can't seek alteration of date of birth at fag end of career. General Manager South Eastern Coalfields v. Avinash Kumar Tiwari, 2023 LiveLaw (SC) 124

Any request for alternation of date of birth cannot be made after a long delay and especially towards the end of the career of an employee - Employees cannot wake up from their slumber after a long time and seek alteration of date of birth towards the fag end of their career. Manager South Eastern Coalfields v. Avinash Kumar Tiwari, 2023 LiveLaw (SC) 124

Gratuity-Death- cum-retirement gratuity is the benevolent scheme - Supreme Court imposes Rs 50,000 cost on the State of UP for challenging gratuity granted to widow of a deceased employee. State of U.P. v. Priyanka, 2023 LiveLaw (SC) 95 : (2023) 3 SCC 619 : (2023) 1 SCR 385

Regularisation can't be claimed if appointment was not by a competent authority & there's no sanctioned post. Vibhuti Shankar Pandey v. State of Madhya Pradesh, 2023 LiveLaw (SC) 91 : AIR 2023 SC 832 : (2023) 3 SCC 639

Regularisation - Two conditions for regularisation of daily wage employees - Firstly, initial appointment must be done by the competent authority and Secondly, there must be a sanctioned post on which the daily rated employee must be working - No claim for regularization if these conditions are not met. Vibhuti Shankar Pandey v. State of Madhya Pradesh, 2023 LiveLaw (SC) 91 : AIR 2023 SC 832 : (2023) 3 SCC 639

VRS employees cannot claim parity with others who retired upon achieving the age of superannuation - They cannot claim parity with those who worked continuously, discharged their functions, and thereafter superannuated. VRS employees chose to opt and leave the service of the corporation; they found the VRS offer beneficial to them. (Para 39) Maharashtra State Financial Corporation Ex-Employees Association v. State of Maharashtra, 2023 LiveLaw (SC) 81 : AIR 2023 SC 792

Pay revision is a matters falling within the domain of executive policy making-What is within the domain of the court, is to examine the impact of such fixation and whether it results in discrimination. (Para 27) Maharashtra State Financial Corporation Ex-Employees Association v. State of Maharashtra, 2023 LiveLaw (SC) 81 : AIR 2023 SC 792

Punishment imposed by disciplinary authority can be interfered with only if it is 'strikingly disproportionate'. Union of India v. Const. Sunil Kumar, 2023 LiveLaw (SC) 49 : AIR 2023 SC 554

Rajasthan Non-governmental Educational Institutions Act - Prior approval of director of education required to remove employee. Gajanand Sharma v. Adarsh Siksha Parisad Samiti, 2023 LiveLaw (SC) 48 : AIR 2023 SC 539

Service Law - Joining the service of a disciplined force like CISF after suppressing criminal cases is a grave misconduct - Removal from service justified. (Para 9, 13) Ex-Const / DVR Mukesh Kumar Raigar v. Union of India, 2023 LiveLaw (SC) 44 : AIR 2023 SC 482

Service Law - Power of judicial review exercised by a Court or a Tribunal against the orders of a departmental enquiry committee is only limited to ensuring "that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court -When an inquiry is conducted on the charges of misconduct by a public servant, the Court or Tribunal would be concerned only to the extent of determining whether the inquiry was held by a competent officer or whether the rules of natural justice and statutory rules were complied with. (Para 10) Ex-Const / DVR Mukesh Kumar Raigar v. Union of India, 2023 LiveLaw (SC) 44 : AIR 2023 SC 482

A person cannot be deemed to be in service when the first dismissal order is in force. State Bank of India v. Kamal Kishore Prasad, 2023 LiveLaw (SC) 42 : (2023) 3 SCC 203

Service Law - SBI Officers Service Rules - When the first dismissal order against a person in service is in force, irrespective of all pending litigations or his age of superannuation, he cannot be deemed to be continuing in service. State Bank of India v. Kamal Kishore Prasad, 2023 LiveLaw (SC) 42 : (2023) 3 SCC 203

Central Civil Services (Pension) Rules, 1972; Rule 54(14)(b) - A case where a child is born to the deceased government servant after his death has to be contrasted with a case where a child is adopted by the widow of a government servant after his death. The former category of heirs are covered under the definition of family since such a child would be a posthumous child of the deceased government servant. (Para 14) Shri Ram Shridhar Chimurkar v. Union of India, 2023 LiveLaw (SC) 40 : AIR 2023 SC 618 : (2023) 4 SCC 312

Central Civil Services (Pension) Rules, 1972; Rule 54(14)(b) - Hindu Adoptions and Maintenance Act, 1956; Sections 8 and 12 - Family Pension - A son or daughter adopted by the widow of a deceased government servant, after the death of the government servant, could not be included within the definition of ‘family’ - Rights and entitlements of an adopted son of a Hindu widow, as available in Hindu Law, as against his adoptive family, cannot axiomatically be held to be available to such adopted son, as against the government, in a case specifically governed by extant pension rules. (Para 10-12) Shri Ram Shridhar Chimurkar v. Union of India, 2023 LiveLaw (SC) 40 : AIR 2023 SC 618 : (2023) 4 SCC 312

Central Civil Services (Pension) Rules, 1972; Rule 54(14)(b) - The phrase “in relation to a government servant” would indicate that the categories of persons listed thereunder, such as wife, husband, judicially separated wife or husband, son or unmarried daughter who has not attained the age of twenty-five years, adopted son or daughter, etc. are sought to be brought into association with the deceased government servant. The context requires that association or connection of such persons with the deceased government servant must be direct and not remote. The said Rule requires that the family member must have a close nexus with the deceased government servant, and must have been dependent on him during his lifetime. (Para 11.1) Shri Ram Shridhar Chimurkar v. Union of India, 2023 LiveLaw (SC) 40 : AIR 2023 SC 618 : (2023) 4 SCC 312

Difference in pay-scale based on academic qualifications is valid even if the nature of work is the same. Union of India v. Rajib Khan, 2023 LiveLaw (SC) 35 : AIR 2023 SC 448

Service Law - Educational qualification can be a ground for different pay scale even if the nature of duties are the same - Pay scale difference in the posts of Nursing Assistant and Staff Nurse in Border Security Force upheld - Nature of work may be more or less the same but the scale of pay may vary based on academic qualification or experience which justifies classification. (Paras 4.4, 5) Union of India v. Rajib Khan, 2023 LiveLaw (SC) 35 : AIR 2023 SC 448

Transferred Judge does not go with the label 'Bar Judge' or 'Service Judge': Supreme Court makes important clarification on categorising vacancies. Advocates Association Bengaluru v. Barun Mitra, 2023 LiveLaw (SC) 21

Transferred judges do not carry label of 'bar judge' or 'service judge' - If a Judge is transferred from a Court, it is not as if a replacement can be provided from the Bar or the Service Judges of that Court as the total strength of the Court is specified. When the Judge is transferred to another Court, he is a transferred Judge neither categorized from the Bar nor from the Service. In the Court where he is transferred, he occupies a physical position in the strength of that Court and unless correspondingly Judges are transferred from that Court, there will be lesser person appointed in that Court from the Bar/Services as the total strength of the Court to which transfer is made cannot be exceeded. The transferred Judge does not carry the label of a Bar or a Service Judge and it is up to the Chief Justice where to he is transferred to reduce the inflow in the Court of transfer, i.e., from the Bar or Service. Similarly, if from the Court where to Judges are transferred, in turn Judges from either category are transferred to other Courts they in turn will carry the label of a transferred Judge and not from the Bar or the Service. This aspect has been clarified as there 5 appears to be some doubts expressed about how the system of transfer will operate. Advocates Association Bengaluru v. Barun Mitra, 2023 LiveLaw (SC) 21