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Supreme Court: CJI Ranjan Gogoi has said that the Court will look into the plea of the Government of NCT of Delhi has sought constitution of a larger bench to expeditiously decide the issue of who controls the services in Delhi.

The bench of Dr. AK Sikri and Ashok Bhushan, JJ had, on February 14, put an end to ‘almost’ all the issues related to the powers exercisable by and functions of the elected Government of National Capital Territory of Delhi (GNCTD) vis-a-vis the Central Government. However, the judges differed on the question relating to ‘Service matters’.

While both the judges agreed that Entry 41 of List II of the Seventh Schedule of the Constitution is not available to the Delhi Legislative Assembly as Entry 41 of List II deals with ‘State Public Services’ and ‘State Public Service Commission’ and that State Public Service Commission does not exist in NCTD, they differed on the issue of power to transfer and appoint certain officers.

Justice Sikri Justice Bhushan
The transfers and postings of Secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the Lieutenant Governor and the file submitted to him directly. For other levels, including DANICS officers, the files can be routed through the Chief Minister to Lieutenant Governor. In case of difference of opinion between the Lieutenant Governor and the Chief Minister, the view of the Lieutenant Governor should prevail and the Ministry of Home Affairs can issue a suitable notification in this regard. I having held that Entry 41 of List II of the Seventh Schedule of the Constitution is not available to the Legislative Assembly of GNCTD, there is no occasion to exercise any Executive power with regard to “Services” by the GNCTD, since the Executive power of the GNCTD as per Article 239AA(4) extend in relation to matters with respect to which Legislative Assembly has power to make laws. With regard to “Services” GNCTD can exercise only those Executive powers, which can be exercised by it under any law framed by the Parliament or it may exercise those Executive powers, which have been delegated to it.

To read the full report report on February 14 verdict, click here.

Case BriefsSupreme Court

Supreme Court: The bench of Dr. AK Sikri and Ashok Bhushan, JJ has put an end to ‘almost’ all the issues related to the powers exercisable by and functions of the elected Government of National Capital Territory of Delhi (GNCTD) vis-a-vis the Central Government.

Difference on opinion on issue relating to ‘service’ matters:

While both the judges agreed that Entry 41 of List II of the Seventh Schedule of the Constitution is not available to the Delhi Legislative Assembly as Entry 41 of List II deals with ‘State Public Services’ and ‘State Public Service Commission’ and that State Public Service Commission does not exist in NCTD, they differed on the issue of power to transfer and appoint certain officers.

 

 

Justice Sikri

 

Justice Bhushan

The transfers and postings of Secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the Lieutenant Governor and the file submitted to him directly. For other levels, including DANICS officers, the files can be routed through the Chief Minister to Lieutenant Governor. In case of difference of opinion between the Lieutenant Governor and the Chief Minister, the view of the Lieutenant Governor should prevail and the Ministry of Home Affairs can issue a suitable notification in this regard.

I having held that Entry 41 of List II of the Seventh Schedule of the Constitution is not available to the Legislative Assembly of GNCTD, there is no occasion to exercise any Executive power with regard to “Services” by the GNCTD, since the Executive power of the GNCTD as per Article 239AA(4) extend in relation to matters with respect to which Legislative Assembly has power to make laws. With regard to “Services” GNCTD can exercise only those Executive powers, which can be exercised by it under any law framed by the Parliament or it may exercise those Executive powers, which have been delegated to it.

 

In the light of the aforementioned difference of opinion, a larger bench will be deciding the issue.

Concurrent opinions of the judges on other issues at a glance:

Setting up of Anti-Corruption Bureau Police Station

Centre

Setting up of Commission of Inquiry

Centre

Power to pass orders under Delhi Electricity Reforms Act, 2011 and Delhi Electricity Reforms (Transfer Schemes) Rules, 2001 appointing the nominee Directors on the Board of Electricity Distribution Companies

GNCTD

Power to revise the minimum rates of Agricultural Land (Circle Rates) under the provisions of Indian Stamp Act, 1899

GNCTD

However, the LG is also empowered to form its opinion ‘on any matter’ which may be different from the decision taken by his Ministers. In such circumstances, LG is supposed to refer the matter to the President for decision and act according to the decision given thereon by the President.

Appointment of Public Prosecutors under Section 24 of the Code of Criminal Procedure

GNCTD

 

Also read the related 5-judge Constitution Bench judgement that held that NCT of Delhi is not a State and Lt. Governor of Delhi is not an administrator.

[Govt. of NCT of Delhi v. Union of India, 2019 SCC OnLine SC 193, decided on 14.02.2019]

Case BriefsHigh Courts

Patna High Court: A Single Judge Bench comprising of Nilu Agrawal, J. while hearing a civil writ petition ruled that the date of appointment of an employee is the date when he is incorporated into the cadre of his service, and not the date of advertisement under which he was employed.

The instant petition was filed seeking quashing of order by which petitioner was communicated that he was going to superannuate under the New Pension Scheme. In pursuance to Advertisement No. 01 dated 23-11-2004, petitioner had applied for the post of 4th grade employee, but his appointment could be made only on 06-12-2007.

Petitioner’s contention was that since the advertisement, under which he was recruited, pertained to the year 2004, old rules would be applicable to him and he could not be treated to be covered under the New Pension Scheme, which was effective with effect from 01-09-2005.

Counsel on behalf of the respondent submitted that since the petitioner was appointed in the year 2007 and the New Pension Scheme came into force in 2005, he would automatically be covered under the New Pension Scheme.

The Court observed that it had been held by a number of decisions of this Court as well as the Apex Court that the date of appointment of an employee would be the date when he is incorporated in the cadre. Therefore, it was held that as the petitioner was appointed in the year 2007, he could not have claimed the benefit of Old Pension Scheme. Thus, the petition was dismissed.[Arun Kumar Verma v. State of Bihar, 2018 SCC OnLine Pat 2178, decided on 07-12-2018]

Case BriefsHigh Courts

Allahabad High Court: A Single Judge Bench comprising of Ashwani Kumar Mishra, J., dismissed a petition filed against termination of petitioner’s services.

The petitioner in this petition had challenged the order passed by the Commandant, Central Industrial Security Force, Midanapur, West Bengal whereby petitioners service was terminated while he was on probation. Respondent contended the maintainability of the case as no cause of action arose before the Allahabad High Court whereas petitioner submitted that since selection procedure were carried at Allahabad thus part of cause of action arises before the court. Respondent referred to a Division Bench decision of the Court in Sube Singh v. Union of India, Special Appeal No.107 of 2017 where it was observed that just because selection proceedings have occurred under the territorial jurisdiction of a court, that would not constitute a part of cause of action for maintaining a writ petition against the order of termination.

In light of the above submissions, the Court held that the petition was not maintainable as no cause of action arose in the territorial jurisdiction of the Allahabad High Court. [Pramod Kumar v. Union of India,2018 SCC OnLine All 1585, order dated 07-09-2018]

Case BriefsHigh Courts

Jammu and Kashmir High Court: Instant Letters Patent Appeal was filed before a 2-Judge Bench comprising of Dhiraj Singh Thakur and Sanjay Kumar Gupta, JJ., where appellant’s plea to remain in the accommodation even after retirement which was allotted during his service was rejected.

Appellant was granted three months after retirement to use the accommodation but he failed to show any provision under which he could be allowed to stay in the premise even after retirement. A communication between Deputy Director of Estates (A-II), Government of India, and one Deep Kumar was referred where Deep Kumar was given permission to live in the premise after retirement and an order was given to use the accommodation until finalization and implementation of the policy with regard to the accommodation of migrants from the Kashmir Valley. Appellant contended that the said policy has not been finalized and thus he can hold the premise till its finalization.

The High Court was of the view that appellant’s accommodation cannot be extended as other employees who are in service would require the said accommodation. Since appellant was also unable to show why he should be allowed to live in the said premise the appeal was dismissed. [Piaray Lal Koul v. Union of India,2018 SCC OnLine J&K 568, order dated 06-08-2018]

Case BriefsHigh Courts

Bombay High Court: The Court accepted service of notice through WhatsApp messenger after finding that the notice served was not only delivered, but the attachment was opened as well.

The claimants had filed the execution application against the respondent who was evading all their calls and efforts by legal representatives to reach out to him. He has been evading service of notice under Order XXI Rule 22 of the Code of Civil Procedure, 1908. After tracing his number, a notice was sent to him informing him about the next date of hearing. Notice was served by an authorised officer of the claimant by sending a PDF and message to his mobile number as a WhatsApp message.

The Bench of G.S. Patel, J. accepted this for the purposes of service of Notice under Order XXI Rule 22 as the icon indicators clearly showed that not only was the message and its attachment delivered to the respondent’s number but that both were opened as well. [SBI Cards & Payments Services Pvt. Ltd. v. Rohidas Jadhav,2018 SCC OnLine Bom 1262, order dated 11-06-2018]

Case BriefsHigh Courts

Rajasthan High Court: A Single Judge Bench comprising of Veerender Singh Siradhana, J. dismissed a civil writ petition filed by the petitioner against his transfer from Rajasthan State Consumer Dispute Redressal Commission, Jaipur to District Consumer Dispute Redressal Forum, Jaisalmer.

The petitioner was employed as a class IV employee in the Commission at Jaipur for last 24 years. By the impugned order, as many as six employees including the petitioner were transferred. Feeling aggrieved, the petitioner preferred an appeal before the Rajasthan Civil Services Appellate Tribunal who directed the Commission to consider the representation of the petitioner. However, the Commission declined his representation. Aggrieved, the petitioner approached the High Court.

The High Court, while perusing the record, noted that the only grievance put forth by the appellant was that he had a son and four daughters, who were of marriageable age, and therefore, he ought to have been retained at Jaipur. Placing reliance on the Supreme Court decision in Gobardhan Lal v. State of U.P., (2004) 11 SCC 402, which dealt with the scope and extent of judicial review in matters of transfer of an employee, the High Court observed, by a catena of judgments it is now well settled that transfer is an incident of service. Unless transfer is effected in violation of any mandatory statutory rule or having adverse consequences on conditions of service, the same is not to be interfered with by the Courts as an Appellate Authority. In light of the discussion as mentioned herein, the Court declined to interfere with the impugned transfer order as passed by the Competent Authority. The petition was thereby dismissed. [Vinod Kumar Bairwa v.  Rajasthan State Consumer Dispute Redressal Commission, 2018 SCC OnLine Raj 1358, dated 29-5-2018]

Case BriefsHigh Courts

Allahabad High Court: The Single Judge Bench comprising of Ashwani Kumar Mishra, J. decided a writ petition for the sanction of gratuity before completion of the age of 60 years.

The petitioner sought the gratuity of his wife who was a headmaster in the institution and died in the year 2013. The petitioner was refused for gratuity on the ground that such amount was payable only on the completion of service at the age of 60 years and not prior to it.

Observing the circumstances of the case, a similar Writ Petition No. 40568 of 2016 was considered by this Court, in which it was decided that the Government Order does not restrict payment of gratuity to an employee, who is otherwise covered under the scheme just because he has not attained the age of 60 years. Clause 5 of the Government Order, which provides that gratuity would be payable at the age of 60 years or upon death. Therefore, the petition from which reference has been taken upon, rejection of petitioner’s claim for payment of gratuity was held to be not justified.

In the present case, the Court concluded by quashing the impugned order and directed the authority concerned to re-consider the matter and take a decision with regard to payment of interest in terms of the applicable government order. [Chandra Prakash Saxena v. State of U.P., 2018 SCC OnLine ALL 532,  order dated 07-05-2018]

Case BriefsHigh Courts

High Court of Madhya Pradesh, Jabalpur: The Court recently addressed a petition for altering the date of birth of petitioner from 1956 to 1963 in all his service documents. For this, the counsel on his behalf submitted his primary education certificate indicating his date of birth to be 1963. Terming it to be a clerical error, he pleaded the Court to get it corrected.

On the other hand, the counsel for respondents contended that at the time of joining the services, the petitioner himself signed as well as gave his thumb impression on the documents containing his date of birth and thus, he was very well aware of the wrong entry of hid date of birth in the documents.

The Bench of Sujoy Patil, J. on hearing both the sides observed that the question raised in this petition was not at all res integra, but had many times been answered by the Supreme Court. It followed the judgment of Apex Court in Union of India v. Harnam Singh,  (1993) 2 SCC 162 and Division Bench of the High Court  in State of M.P. v. Mathura Singh in which it had been had that in absence of overwriting or clerical error, no alterations could be permitted in the date of birth of anyone pleading for the same.  [Durga Prasad v. State of MP, 2017 SCC OnLine MP 1467, decided on 08.12.2017]

Case BriefsHigh CourtsUniversities and Educational Institutions

Punjab and Haryana High Court: While deciding upon 68 writ petitions filed by various Professors and Assistant Professors of the Panjab University and its affiliated colleges, all seeking the writ of Mandamus directing the Central Government and the Panjab University to raise the age of superannuation from service to 65 years, the Bench of Amol Rattan Singh, J., dismissed the petitions stating that the matter of raising the age of superannuation is solely a matter of executive policy.

In the instant petitions it was contended that the respondent University is sui generis and is Centrally governed, controlled and funded and therefore a Central University, and relied upon Section 2 (b) of the Panjab University Act, 1947 and Section 72 of the Punjab Re-Organization Act, 1966, Section 2(d) of the Central Educational Institutions (Reservation in Admission) Act, 2006, Article 248 of the Constitution read with Entry 97 in List I of the Seventh Schedule, and Article 254 of the Constitution, read with Clause 2.1.0 of the UGC Regulations 2010. It was contended that since the University is being funded by the Ministry of Human Resource and Development through the UGC, it would also be governed by Clause 2.1.0, per se, and the age of superannuation of its teachers should thus be raised to 65 years. In rebuttal the respondents contended that Panjab University was established by the Panjab University Act, 1947, and at that time, the ‘area of jurisdiction’ of the University covered the undivided State of Punjab. In 1966 upon the reorganization of the State of Punjab University was declared to be an Inter-State body corporate, as per Section 72 (3) of the Punjab Reorganisation Act, 1966.

Upon perusing the contentions, the Court declined to accept the petitioners’ contention to that the plain meaning of the words contained in Clause 2.1.0 of the UGC Regulations must be given effect without any additions or subtractions whatsoever. The Court further perused the letter of the Director (U.II) MHRD, which clarified that the respondent University is not a Central University but an Inter State body; even the documents relied by the petitioners failed to prove the same. It was further added that an increased quantum of funding by the Central Government also does not render the respondent University to be a Central University. The Court thus concluded that it did not find the decision of refusing to raise the age of superannuation as arbitrary. [Bhura Singh Ghuman v. Panjab University2016 SCC OnLine P&H 6385, decided on 16.08.2016]

Supreme Court

Supreme Court: While deciding that whether the respondents were within the authority under Rule 85 of U.P. Co-operative Employees Service Regulations, 1975 to hold a disciplinary enquiry against the appellant who had retired from the service, the Court held that in absence of such a provision in the said regulation, the respondents have no vested authority to continue a departmental enquiry and make any reduction in the retiral benefits of the appellant. 

In the instant case, a disciplinary enquiry was initiated against the appellant in 1988 in accordance with said Rule, after which he was dismissed from the service. The Allahabad High Court quashed the order of dismissal in 2006 on violation of principles of natural justice and ordered reinstatement and payback of wages as mandated in the Regulations and gave liberty to the respondents to conduct a fresh enquiry. After the reinstatement, the appellant faced a new disciplinary enquiry as per the High Court order and during the pendency of the enquiry the appellant retired from the service. Challenging the continuance of the disciplinary proceeding after the retirement, T. Mahipal, the counsel for the appellant argued that Regulations do not contain any specific provision on whether a disciplinary enquiry can be continued after retirement; therefore, the respondents have no authority to continue the enquiry. Sunil Jain, the counsel for the respondent however argued that the enquiry had been initiated in pursuance of the HC order and retirement of the appellant cannot take away the employer’s right to conduct the enquiry.

The Court, referring to its earlier decision in Bhagirathi Jena v. Board of Directors, O.S.F.C. (1999) 3 SCC 666, observed that the Regulations do not have any provision that allows for continuance of a disciplinary enquiry after superannuation (retirement) and reduction of any retiral benefits. Therefore, the Court held that the enquiry had lapsed and the appellant is entitled to full retiral benefits on retirement along with arrears of salary and other allowances as if there had been no disciplinary hearing. Dev Prakash Tewari v. U.P. Co-operative Institutional Service Board, Civil Appeal Nos.5848-49 of 2014, decided on 30.06.2014 


To read the full judgment, refer SCCOnLine