No.19/116/2024-Pers.Pol.(Pay)(Pt)
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel & Training

North Block, New Delhi
Dated the 14th October, 2024.

OFFICE MEMORANDUM

Subject: Grant of notional increment on 1st July/ 1st January to the employees who retired from Central Govt.service on 30th June / 31st December respectively for the purpose of calculating their pensionary benefits – regarding.

The undersigned is directed to say that in terms of Rule 10 of the Central Civil Services (Revise Pay) Rules, 2006, notified by D/o Expenditure vide Notification No.G.S.R.622 (E) dated 29.08.2008, date of annual increment was made uniform viz. 1st July of every year with effect from 01.01.2006. It was subsequently decided vide Rule 10 (1) of the Central Civil Services (Revise Pay) Rules, 2016, notified by D/o Expenditure vide Notification No.G.S.R.721 (E) dated 25.07.2016, that there shall be two dates for grant of increment namely 1st January and 1st July of every year.

2. Hon’ble High Court of Madras in its Order dated 15.09.2017 in W.P.No.15732 of 2017-P.Ayyamperumal Vs Union of India & Ors. allowed grant of notional increment to the petitioner on the day following the date of his retirement from service for the purpose of calculation of pensionary benefits. Judgement in the case of Shri P.Ayyamperumal was implemented in personam. Following this, D/o Personnel and Training (DOPT) received a number of representations from the employees who superannuated on 30th June/ 31st December claiming similar benefit. Large number of Court cases have also been filed before Hon’ble Administrative Tribunals, High Courts and Supreme Court on the subject matter.

3. The issue was examined in consultation with the nodal authorities concerned and with due regard to the relevant provisions in the Fundamental Rules (FRs) which regulate grant of increment to the Central Government employees. It is pertinent to note that FR 9(21) (a) defines ‘pay’ as the amount sanctioned to a Government servant for a post held by him substantively or in an officiating capacity or to which he is entitled by reason of his position in a cadre.FR 17 provides that subject to any exceptions specifically made in these Rules, an employee shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post and shall cease to draw them as soon as he ceases to discharge those duties. Further, FR 24 stipulates that an increment may be withheld from a Government servant if his conduct has not been good or his work has not been satisfactory. To summarise these Rule provisions, for availing the benefit of an increment on the date of its accrual, an employee should be in service, should have rendered satisfactory work and should have displayed good conduct during the period of qualifying service.

4. However, Hon’ble Supreme Court vide Order dated 11.04.2023 in Civil Appeal No.2471 of 2023 (@SLP (C) No.6185/2020) – Director (Admn.and HR), KPTCL Vs C.P.Mundinamani & Ors, upheld the Orders passed by the Division Bench of the Hon’ble High Court of Karnataka at Bengaluru in Writ Appeal No.4193/2017 allowing grant of one annual increment, which the original writ petitioners earned on the last day of their service for rendering services during preceding one year from the date of retirement with good behaviour and efficiently, for the purpose of calculating the retiral benefits. However, Union of India was not among the Parties in the said case.

and have rendered the requisite qualifying service as on the date of their superannuation with satisfactory work and good conduct for calculating the pension admissible to them. As specifically mentioned in the Orders of the Hon’ble Supreme Court, grant of the notional increment on 1st January/1st July shall be reckoned only for the purpose of calculating the pension admissible and not for the purpose of calculation of other pensionary benefits.

8. It may also be noted that these instructions are being issued in compliance of the Interim Orders dated 06.09.2024 of the Hon’ble Supreme Court in MA Dy.No.2400/2024 without prejudice to the legal stand of the Union of India in the matter and without prejudice to any change of law in this regard.Further, the action taken shall be subject to the final outcome of the Review Petition (Dy.No.36418/2024) pending before the Hon’ble Supreme Court which is expected to be heard by the Apex Court in the week commencing 04.11.2024,

9. This issues with the concurrence of D/o Expenditure vide their Dy.No.08- 09/2019-E.III.A(Vol.III) (3969602) dated 08.10.2024 and D/o Legal Affairs vide Computer Dy.No.E 128445 dated 30.09.2024.

10. Hindi Version will follow.

(Mahesh Kumar)
Under Secretary to the Government of India

To
All Ministries/ Departments of Government of India.

Download DoP&T O.M. dated 14.10.2024 purpose of calculating their pensionary benefits

The post Grant of notional increment on 1st July/ 1st January to the employees who retired from Central Govt service on 30th June / 31st December respectively for the purpose of calculating their pensionary benefits – DoPT appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2471 OF 2023
(@ SLP (C) No. 6185/2020)

The Director (Admn. and HR) KPTCL & Ors. ..Appellant(s)

Versus

C.P. Mundinamani & Ors. …Respondent(s)

J U D G M E N T

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Karnataka at Bengaluru in Writ Appeal No. 4193/2017, by which, the Division Bench of the High Court has allowed the said appeal preferred by the employees respondents herein by quashing and setting aside the judgment and order passed by the learned Single Judge and directing the appellants to grant one annual increment which the respondents had earned one day prior to they retired on attaining the age of superannuation, the management – KPTCL has preferred the present appeal.

2. The undisputed facts are that one day earlier than the retirement and on completion of one year service preceding the date of retirement all the employees earned one annual increment. However, taking into consideration Regulation 40(1) of the Karnataka Electricity Board Employees Service Regulations, 1997 (hereinafter referred to as the Regulations), which provides that an increment accrues from the day following that on which it is earned, the appellants denied the annual increment on the ground that the day on which the increment accrued the respective employees – original writ petitioners were not in service. The writ petition(s) filed by the original writ petitioners claiming the annual increment came to be dismissed by the learned Single Judge. By the impugned judgment and order and following the decision of the Andhra Pradesh High Court in the case of Union of India and Ors. Vs. R. Malakondaiah and ors. reported in 2002(4) ALT 550 (D.B.) and relying upon the decisions of other High Courts, the Division Bench of the Karnataka High Court has allowed the appeal and has directed that the appellants to grant one annual increment to the respective employees-respondents by observing that the respective employees as such earned the increment for rendering their one-year service prior to their retirement.

2.1 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court, the management – KPTCL has preferred the present appeal.

6. The short question which is posed for the consideration of this Court is whether an employee who has earned the annual increment is entitled to the same despite the fact that he has retired on the very next day of earning the increment?

6.1 In the present case, the relevant provision is Regulation 40(1) of the Regulations which reads as under: –

“Drawals and postponements of increments 40(1) An increment accrues from the day following that on which it is earned. An increment that has accrued shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from an employee by the competent authority, if his conduct has not been good, or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is withheld, and whether the postponement shall have the effect of postponing future increments.”

6.2 It is the case on behalf of the appellants that the word used in Regulation 40(1) is that an increment accrues from the day following that on which it is earned and in the present case the increment accrued on the day when they retired and therefore, on that day they were not in service and therefore, not entitled to the annual increment which they might have earned one day earlier. It is also the case on behalf of the appellants that as the increment is in the form of incentive and therefore, when the employees are not in service there is no question of granting them any annual increment which as such is in the form of incentive.

6.7 Similar view has also been expressed by different High Courts, namely, the Gujarat High Court, the Madhya Pradesh High Court, the Orissa High Court and the Madras High Court. As observed hereinabove, to interpret Regulation 40(1) of the Regulations in the manner in which the appellants have understood and/or interpretated would lead to arbitrariness and denying a government servant the benefit of annual increment which he has already earned while rendering specified period of service with good conduct and efficiently in the last preceding year. It would be punishing a person for no fault of him. As observed hereinabove, the increment can be withheld only by way of punishment or he has not performed the duty efficiently. Any interpretation which would lead to arbitrariness and/or unreasonableness should be avoided. If the interpretation as suggested on behalf of the appellants and the view taken by the Full Bench of the Andhra Pradesh High Court is accepted, in that case it would tantamount to denying a government servant the annual increment which he has earned for the services he has rendered over a year subject to his good behaviour. Theen Titlement to receive increment therefore crystallises when the government servant completes requisite length of service with good conduct and becomes payable on the succeeding day. In the present case the word “accrue” should be understood liberally and would mean payable on the succeeding day. Any contrary view would lead to arbitrariness and unreasonableness and denying a government servant legitimate one annual increment though he is entitled to for rendering the services over a year with good behaviour and efficiently and therefore, such a narrow interpretation should be avoided. We are in complete agreement with the view taken by the Madras High Court in the case of P. Ayyamperumal (supra); the Delhi High Court in the case of Gopal Singh (supra); the Allahabad High Court in the case of Nand Vijay Singh (supra); the Madhya Pradesh High Court in the case of Yogendra Singh Bhadauria (supra); the Orissa High Court in the case of AFR Arun Kumar Biswal (supra); and the Gujarat High Court in the case of Takhatsinh Udesinh Songara (supra). We do not approve the contrary view taken by the Full Bench of the Andhra Pradesh High Court in the case of Principal Accountant-General, Andhra Pradesh (supra) and the decisions of the Kerala High Court in the case of Union of India Vs. Pavithran (O.P.(CAT) No. 111/2020 decided on 22.11.2022) and the Himachal Pradesh High Court in the case of Hari Prakash Vs. State of Himachal Pradesh & Ors. (CWP No. 2503/2016 decided on 06.11.2020).

7. In view of the above and for the reasons stated above, the Division Bench of the High Court has rightly directed the appellants to grant one annual increment which the original writ petitioners earned on the last day of their service for rendering their services preceding one year from the date of retirement with good behaviour and efficiently. We are in complete agreement with the view taken by the Division Bench of the High Court. Under the circumstances, the present appeal deserves to be dismissed and is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.

I.A. No. 149091/2022 stands disposed of in terms of the above.

[M.R. SHAH]
[C.T. RAVIKUMAR]

NEW DELHI;
APRIL 11, 2023

The post One annual increment which the respondents had earned one day prior to they retired on attaining the age of superannuation appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

EPFO, HEAD OFFICE
MINISTRY OF LABOUR & EMPLOYMENT,
GOVERNMENT OF INDIA,
BHAVISHYA NIDHI BHAWAN, 14,
BHIKAJI CAMA PLACE, NEW DELHI 110066

No. Pension/2022/ 54877/15238

Date: 05.01.2023

CORRIGENDUM 

To,
All Addl. CPFCs, Zonal Offices.
All RPFCs / OICs, Regional Offices.

Sub: Instructions in compliance of orders contained in Para 44 (ix) read with Para 44 (v) & (vi) of Hon’ble Supreme Court judgement dated 04.11.2022 in the matter of Special Leave Petition (C) Nos. 8658-8659 of 2019.

Madam/Sir,

This refers to the Head Office Circular No. Pension/2022/54877/15149 dated 29.12.2022 on the above cited subject.

Sub para ii of Para 7 of the above mentioned circular may be read as:

“ii The application form for validation will contain the disclaimer as may be specified therein.”

Further, Para 11 of the above mentioned circular may be read as:

“11. These directions are issued with reference to communication of MoLE as referred above and for implementation of the judgement dated 04.11.2022 of Hon’ble Supreme Court.”

[This issues with the approval of CPFC]

Yours faithfully,

(Animesh Mishra)
Addl. Central P.F. Commissioner (Pension)

EPFO, HEAD OFFICE
MINISTRY OF LABOUR & EMPLOYMENT,
GOVERNMENT OF INDIA,
BHAVISHYA NIDHI BHAWAN, 14,
BHIKAJI CAMA PLACE, NEW DELHI 110066

No. Pension/2022/ 54877/15149

Date: 29 DEC 2022

To
All Addl. CPFCs, Zonal Offices.
All RPFCs / OlCs, Regional Offices.

Sub: Instructions in compliance of orders contained in Para 44 (ix) read with Para 44 (v) & (vi) of Hon’ble Supreme Court judgement dated 04.11.2022 in the matter of Special Leave Petition (C) Nos. 8658-8659 of 2019.

Madam/Sir,

The above matter was referred to the Central Government for issuing directions. The Central Government vide letter dated 22.12.2022 has directed that requisite action may be taken by EPFO to implement the directions contained in para 44 (ix) of the judgment dated 04.11.2022 of the Hon’ble Supreme Court within the stipulated timelines. Government has further directed that adequate publicity may be made to the decisions taken by EPFO to implement the said directions.

2. Accordingly, the field offices are directed to implement the directions contained in para 44 (ix) of the judgment dated 04.11.2022 of the Hon’ble Supreme Court within the stipulated timeline and to ensure adequate publicity of the decisions taken by EPFO to implement the said directions.

3. As may be seen, the Hon’ble Supreme Court has pronounced judgement dated 04.11.2022 in the matter of Special Leave Petition (C) Nos. 8658-8659 of 2019. The relevant directions of the court with respect to above-mentioned subject are as follows.

“44 (v) The employees who had retired prior to 1st September 2014 without exercising any option under paragraph 11(3) of the pre-amendment scheme have already exited from the membership thereof. They would not be entitled to the benefit of this judgment.

44 (vi) The employees who have retired before 1st September 2014 upon exercising option under paragraph 11(3) of the 1995 scheme shall be covered by the provisions of the paragraph 11(3) of the pension scheme as it stood prior to the amendment of 2014.

44 (ix) We agree with the view taken by the Division Bench in the case of R.C. Gupta (supra) so far as interpretation of the proviso to paragraph 11(3) (pre-amendment) pension scheme is concerned. The fund authorities shall implement the directives contained in the said judgment within a period of eight weeks, subject to our directions contained earlier in this paragraph.”

4. In this context, factual position as narrated in R.C. Gupta & ors etc. vs Regional Provident Fund Commissioner, Employees’ Provident Funds Organisation & ors etc. dated 04.10.2016 is as follows: –

4.1 Paragraph 4 of the above judgement states:

“ The appellant-employees on the eve of their retirement i.e. sometime in the year 2005 took the plea that the proviso brought in by the amendment of 1996 was not within their knowledge and, therefore, they may be given the benefit thereof, particularly, when the employer’s contribution under the Act has been on actual salary and not on the basis of ceiling limit of either Rs.5,000/- or 6,500/- per month, as the case may be. This plea was negatived by the Provident Fund Authority on the ground that the proviso visualized a cut-off date for exercise of option, namely, the date of commencement of Scheme or from the date the salary exceeded the ceiling amount of Rs.5,000/- or 6,500/- per month, as may be. As the request of the appellant-employees was subsequent to either of the said dates, the same cannot be acceded to.”

4.2 Relevant portion of Paragraph 8 of the above judgement states:

“… The said dates are not cut off dates to determine the eligibility of employer employee to indicate their option under the proviso to clause 11(3) of the pension scheme”.

4.3 Relevant portion of Paragraph 10 of the above judgement states:

“… If both the employer and the employee opt for deposit against the actual salary and not the ceiling amount, the exercise of the option under paragraph 26 of the provident fund scheme is inevitable. Exercise of the option under paragraph 26(6) is a necessary precursor to the exercise of the option to the Clause under 11(3). Exercise of such option, therefore, would not foreclose the exercise of a further option under Clause 11(3) of the pension scheme unless the circumstances warranting such foreclosure are clearly indicated”.

5. Accordingly, the direction of the Hon’ble Supreme Court in RC. Gupta judgement pertains to such employees who contributed on higher wages under paragraph 26(6) of EPF Scheme, and had further exercised their option under the proviso to erstwhile para 11 (3) prior to their retirement, but their option request under the proviso to paragraph 11(3) was explicitly denied by concerned office of the RPFC and /or contribution on higher salary was refunded / diverted back to provident fund accounts.

6. The following pensioners may apply digitally/ online at www.epfindia.gov.in for validating their options, if any, by the concerned Regional Office:

• the pensioners who as employees had contributed under paragraph 26(6) of EPF Scheme on salary exceeding the prevalent wage ceiling of Rs 5000/- or 6500/-; and
• exercised joint option under the proviso to Para 11(3) of the pre-amendment scheme while being members of EPS,95; and
• their exercise of such option was declined by PF authorities,

7. The way such pensioners would apply ‘to the concerned Regional Office is as follows:

• The request will be made in such form and manner, as may be specified by the Commissioner.
• The application form for validation will contain the disclaimer as ordered in the aforesaid government notification.
• In case of share requiring adjustment from Provident Fund to Pension Fund and if any, re deposit to the fund, the explicit consent of the pensioner will be given in the application form.
• In case of transfer of funds from exempted provident fund trust to pension fund of EPFO, an undertaking of the trustee shall be submitted. The undertaking shall be to the effect that due contribution along with interest-upto the date of payment, will be deposited within the specified period.
• The method of deposit of such funds will follow through subsequent circulars.
• Aforesaid application form must contain the following specified documents for evidence and for further processing : –
  • Proof of joint option under Para 26(6) of the EPF Scheme duly verified by the employer; and
  • Proof of joint option under the proviso to erstwhile Para 11(3) duly verified by the employer; and
  • Proof of remittance in Provident Fund on higher wages exceeding the prevalent wage ceiling of 5000/6500; and
  • Proof of remittance in Pension Fund on higher wages exceeding the prevalent wage ceiling of 5000/6500, if any; and
  • Written refusal of APFC or any other higher authority of EPFO to such requests/ remittance.

8. The above application forms when received in the specified time period will be dealt with in the following manner by Regional PF Commissioner:

• A facility-will be provided for which URL will be informed shortly. Once received, the Regional PF Commissioner shall put up adequate notice and banners on the noticeboard for wider public information.
• Each application will be registered and digitally logged. The receipt number will be provided to the applicant.
• The application will land into employer’s login whose verification with e-sign will be essential for further processing.
• RPFC will cause each application to be converted into e-file, as far as possible.
• The concerning dealing assistant will examine the papers including the note on receipt of due amount in the Pension Fund, and mark the case to Section Supervisor / Account Officer.
• The concerning SS / AO will mark out any discrepancies and send it with the rule position to APFC / RPFC-II who after due examination will put the case to Officer-in charge of RO.
• The OIC shall examine each case of pension on higher salary and dispose it by passing a speaking order that shall be intimated to the applicant through e-mail/post. Efforts will be made to intimate them through telephone/SMS.

9, Officer in-Charge of the concerned Regional office will send a weekly monitoring report to the respective Zonal Office. The monitoring format will be specified by the ACC-HQ Pension. Zonal office will also report the aggregate position of the zones weekly to the Pension Division at Head Office.

10. Any grievance by the applicant can be registered on EPFIGMS after submission of his request form and payment of due contribution, if any. The registration of such grievance shall be under specified category of higher pension with reference to Supreme Court Judgment dated 04.11.2022. All such grievances shall be addressed and disposed of at the level of Nominated Officer. Grievances will be monitored by the Officer in-Charge of Regional Office and Zonal Office.

11. These directions are issued in compliance of the judgement dated 04.11.2022 of Hon’ble Supreme Court and notification of the MoL&E for immediate implementation.

12. This circular is being issued in supersession of all earlier instructions issued on this subject.

[This issues with the approval of CPFC.]

Yours faithfully,

(Animesh Mishra)
Addl. Central P.F. Commissioner (Pension)

The post Instructions in compliance of orders in Supreme Court judgement dated 04.11.2022 in the matter of Special Leave Petition appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

MACP for the Central Government Employees

Case Details:-

• Judgement Date: 22-08-2022
• Diary Number 22508 / 2021
• Case Number C.A. No.-005545-005545 / 2022
• Petitioner Name UNION OF INDIA
• Respondent Name EX. HC/GD VIRENDER SINGH
• Petitioner’s Advocate B. V. BALARAM DAS
• Respondent’s Advocate
  Bench HON’BLE MR. JUSTICE SANJIV KHANNA, HON’BLE MS. JUSTICE BELA M. TRIVEDI
• Judgment By HON’BLE MR. JUSTICE SANJIV KHANNA

Matter raised:-

2. ….. Appeals by way of special leave raise three issues, all of which are connected and relate to the Modified Assured Career Progression Scheme, namely:

(a) Whether the MACP Scheme is applicable and to be implemented with effect from 1st January 2006, the date from which the Central Civil Service (Revised Pay) Rules, 2008 were enforced, or in terms of O.M. dated 19th May 2009 with effect from 1st September 2009?

(b) Whether under the MACP Scheme the respondents are entitled to financial upgradation equivalent to the pay scale/grade pay of the next promotional post in the hierarchy, or the immediate next grade pay in the hierarchy of the pay bands as stated in Section 1, Part A of the First Schedule to the Central Civil Services (Revised Pay) Rules, 2008?

(c) Whether the respondents, who belong to the Central Armed Police Forces, are entitled to grant of financial upgradation under the MACP Scheme, if for administrative reasons they were unable to fulfil the pre-proportional norms?

Findings:-

• It can be stated that the MACP Scheme, like the ACP Scheme, is an incentive scheme devised with the object of ensuring that the employees who have stagnated for lack of adequate promotional avenues are given benefit in the form of financial upgradation.
• The financial upgradation is personal, does not amount to regular or actual functional promotion, and does not require creation of a new post.
• Financial upgradation is granted to only those employees who have not received actual or functional promotion even after completion of the requisite service period, though otherwise, they fulfil the prescribed conditions for promotion.
• Under the MACP Scheme, an employee is entitled to three financial upgradations on completion of 10, 20 and 30 years of regular service to the next higher grade pay in the hierarchy of the pay bands and grade pay as given in Section 1, Part A of the First Schedule of the Central Civil Services (Revised Pay) Rules, 2008.
• Sixth Central Pay Commission to bring systematic changes in the erstwhile ACP Scheme so that all employees, irrespective of the existing hierarchical structure in their organisations/cadres, get identical financial benefit of the next immediate grade pay instead of the pay/grade pay applicable to the next promotional post.
• The ACP Scheme and MACP Schemes were held to be in the nature of incentive schemes to relieve stagnation and not as a part of pay structure, which had revised the pay and the dearness allowance with effect from 1.1.2006.
• A liberal, pragmatic and ameliorative approach is required to succour genuine grievances of the personnel doing duty for the nation, owing to which they forgo participation in pre-promotional courses.

Judgement in view of discussions:-

12. ………………. the appeals filed by the Union of India are partly allowed and impugned judgments, to the extent they hold that the MACP Scheme applies with effect from 1.1.2006 and that under the MACP Scheme the employees are entitled to financial upgradation equivalent to the next promotional post, are set aside. MACP Scheme is applicable with effect from 1.9.2008 and as per the MACP Scheme, the entitlement is to financial upgradation equivalent to the immediate next grade pay in the hierarchy of the pay bands as stated in Section 1, Part A of the First Schedule to the Central Civil Services (Revised Pay) Rules, 2008. The third issue, which relates to the fulfilment of pre-promotional norms for grant of financial upgradation, is decided against the appellant-Union of India to the extent that this would not be insisted in the case of the Central Armed Forces personnel where, for administrative or other reasons, they could not be sent or undergo the pre-promotional course. All pending applications are disposed of.

The post MACP Scheme is applicable with effect from 1.9.2008 to financial upgradation equivalent to the immediate next grade pay Supreme Court Judgement appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICITON

CIVIL APPEAL NO. 5122 OF 2021

The Director of Treasuries
in Karnataka & Anr.

.. Appellants

Versus

V. Somyashree

.. Respondent

J U D G M E N T

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned Judgment and Order dated 17.12.2018 passed by the High Court of Karnataka at Bengaluru in Writ Petition No.5609/2017 by which the High Court has allowed the said Writ Petition preferred by the respondent herein and has quashed and set aside the order dated 09.12.2015 passed by the Karnataka State Administrative Tribunal, Bengaluru in Application No.6396 of 2015 and consequently has directed the appellants herein to consider the application of the respondent herein – original writ petitioner (hereinafter referred to as ‘original petitioner’) for grant of compassionate appointment, the original respondent has preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:

That one Smt. P. Bhagyamma, the mother of the original writ petitioner was employed with the Government of Karnataka as Second Division Assistant at Mandya District Treasury. She died on 25.03.2012. That original writ petitioner, who at the relevant time was a married daughter at the time when the deceased (Smt. P. Bhagyamma) died, initiated a divorce proceedings for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 on 12.09.2012. By its judgment and decree dated 20.03.2013 a decree of divorce by mutual consent was passed by the Learned Principal Senior Civil Judge, CJM, Mandya. On the very next day i.e. on 21.03.2013, the original writ petitioner submitted an application to appoint her on compassionate ground on the death of her mother. By order dated 03.05.2013, the application for appointment on compassionate appointment came to be rejected on the ground that there is no provision provided under Rule 3(2)(ii) of Karnataka Civil Services (Appointment on Compassionate Grounds) Rules 1996 (hereinafter referred to as ‘the Rules, 1996’) for divorced daughter. That the original writ petitioner made an application before the Karnataka State Administrative Tribunal being application No.6396 of 2015 on 20.07.2015 i.e. after a period of approximately 2 years from the date of rejection of her application for appointment on compassionate ground. The Learned Tribunal dismissed the said application by order dated 09.12.2015 on the ground that there is no provision for appointment on compassionate ground for divorced daughter. Thereafter, the original writ petitioner approached the High Court against the order dated 09.12.2015 passed by the Learned Administrative Tribunal, Bengaluru.

3. By impugned judgment and order dated 17.12.2018 the High Court has allowed the Writ Petition No.5609 of 2017 and has quashed and set aside the order dated 09.12.2015 passed by the Karnataka Administrative Tribunal, Bengaluru in application No.6393 of 2015 and has directed the appellants herein to consider the application of the original writ petitioner for grant of compassionate appointment based on the observations made in the impugned judgment and order. By the impugned judgment and order the High Court has interpreted Rule 3 of the Rules, 1996 and has observed that a divorced daughter would fall in the same class of an unmarried or widowed daughter and therefore, a divorced daughter has to be considered on par with ‘unmarried’ or ‘widowed daughter’.

3.1 Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court, the appellants have preferred the present appeal.

4. Shri V.N. Raghupathy, Learned Advocate appearing on behalf of the State has vehemently submitted that in the facts and circumstances of the case, the High Court has materially erred in quashing and setting aside the order passed by the Learned Tribunal and has erred in directing the appellants to consider the application of the writ petitioner for grant of compassionate appointment.

4.1 It is submitted that the directions issued by the High Court directing the appellants to consider the application of the original writ petitioner for grant of compassionate appointment is just contrary to Rule 3 of Rules, 1996. It is submitted that as per Rule 3 of the Rules 1996 only “unmarried and widowed daughter” shall be entitled to and/or eligible for the appointment on compassionate ground in the case of the deceased female Government servant. It is submitted that Rule 3 (2)(ii) of Rules, 1996 does not include the ‘divorced daughter’ for grant of compassionate appointment in the case of the deceased female Government servant.
4.2 It is further submitted that even as per the definition of ‘dependent’ as defined in Rule 2 of the Rules, 1996, in case of deceased female Government servant her widower, son, (unmarried daughter or widowed daughter) who were dependent upon her and were living with her can be said to be ‘dependent’. It is submitted that the divorced daughter is not included within the definition of ‘dependent’.

4.3 It is submitted that therefore the directions issued by the High Court directing the appellants to consider the application of the respondent herein for appointment on compassionate ground as a divorced daughter is beyond Rule 2 and Rule 3 of the Rules, 1996.

4.4 It is submitted that even otherwise it has not been established and proved that the respondent herein was ‘dependent’ upon the deceased employee and was living with her at the time of her death.

4.5 It is further submitted that even otherwise the High Court has committed a grave error in not appreciating the fact that the deceased employee died on 25.03.2012 and that thereafter immediately the respondent initiated a divorced proceedings under Section 13B of the Hindu Marriage Act, 1955 on 12.09.2012 and obtained a decree for divorce by mutual consent dated 20.03.2013 and immediately on the very next day submitted that application for appointment on compassionate ground on 21.03.2013. It is submitted that the aforesaid facts would clearly demonstrate that only for the purpose of getting the appointment on compassionate ground she obtained the divorce by mutual consent. It is submitted that the High Court has not at all considered the aforesaid aspects.
5.7 Reliance is placed on the decision of this Court in the case of N.C. Santhosh vs. State of Karnataka and Ors., (2020) 7 SCC 617 in support of the submission that the appointment on compassionate ground only be as per the scheme and the policy.

5.8 Making the above submissions it is prayed to allow the present appeal.

6. Present appeal is vehemently opposed by Shri Mohd. Irshad Hanif, Learned Advocate for the respondent – original writ petitioner.

6.1 It is submitted that in the facts and circumstances of the case the High Court has rightly interpreted Rule 3 and the object and purpose by which Rule 3 was amended in the year 2000 by which the words ‘unmarried daughter’ and ‘widowed daughter’ came to be included within the definition of ‘dependent’ in Rule 3. It is submitted that the High Court has rightly observed that the intention and the rule making authority in adding ‘unmarried’ or ‘widowed daughter’ to the definition of dependent is very clear. It is submitted that the High Court has rightly observed that ‘divorced daughter’ would fall in the same class of ‘unmarried’ or ‘widowed daughter’. It is submitted that while interpreting Rule 3 of the Rules, 1996 the High Court has adopted the purposive meaning.

6.2 It is submitted that even subsequently and as per the Karnataka Civil Services Appointment on Compassionate Grounds (Amendment Rules, 2021) the ‘divorced daughter’ also shall be eligible for appointment on compassionate ground in the case of the deceased Government servant. It is submitted that therefore the interpretation made by the High Court by the impugned judgment is absolutely in line with the amended Rules, 2021 by which now even ‘divorced daughter’ also shall be entitled the appointment on compassionate ground in the case of the deceased servant.

6.3 Making the above submissions it is prayed to dismiss the present appeal.

7. While considering the submissions made on behalf of the rival parties a recent decision of this Court in the case of N.C. Santhosh (Supra) on the appointment on compassionate ground is required to be referred to. After considering catena of decisions of this Court on appointment on compassionate grounds it is observed and held that appointment to any public post in the service of the State has to be made on the basis of principles in accordance with Articles 14 and 16 of the Constitution of India and the compassionate appointment is an exception to the general rule. It is further observed that the dependent of the deceased Government employee are made eligible by virtue of the policy on compassionate appointment and they must fulfill the norms laid down by the State’s policy. It is further observed and held that the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim of compassionate appointment. A dependent of a government employee, in the absence of any vested right accruing on the death of the government employee, can only demand consideration of his/her application. It is further observed he/she is, however, entitled to seek consideration in accordance with the norms as applicable on the day of death of the Government employee. The law laid down by this Court in the aforesaid decision on grant of appointment on compassionate ground can be summarized as under:

• (i) that the compassionate appointment is an exception to the general rule;
• (ii) that no aspirant has a right to compassionate appointment;
• (iii) the appointment to any public post in the service of the State has to be made on the basis of the principle in accordance with Articles 14 and 16 of the Constitution of India;
• (iv) appointment on compassionate ground can be made only on fulfilling the norms laid down by the State’s policy and/or satisfaction of the eligibility criteria as per the policy;
• (v) the norms prevailing on the date of the consideration of the application should be the basis for consideration of claim for compassionate appointment.

8. Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand, we are of the opinion that as such the High Court has gone beyond Rule 2 and Rule 3 of the Rules, 1996 by directing the appellants to consider the application of the respondent herein for appointment on compassionate ground as ‘divorced daughter’. Rule 2 and Rule 3 of the Rules, 1996 read as under:

“2. Definitions:- (1) In these rules, unless the context otherwise requires:-

(a) “Dependent of a deceased Government servant” means-

• (i) in the case of deceased male Government servant, his widow, son, (unmarried daughter and widowed daughter) who were dependent upon him; and were living with him; and
• (ii) in the case of a deceased female Government servant, her widower, son, (unmarried daughter and widowed daughter) who were dependent upon her and were living with her;
• (iii) ‘family’ in relation to a deceased Government servant means his or her spouse and their son, (unmarried daughter and widowed daughter) who were living with him.

(2) Words and expressions used but not defined shall have the same meaning assigned to them in the Karnataka Civil Services (General Recruitment) Rules, 1977.”

6. The eligibility on the death of a female employee is in terms of Rule 3(2)(ii) of the Karnataka Civil Services (Appointment on Compassionate Grounds) Rules, 1996, which reads as follows:

Rule 3(2)(ii):-
‘(ii) in the case of the deceased female Government servant;

• (a) a son;
• (b) an unmarried daughter, if the son is not eligible or for any valid reason he is not willing to accept the appointment;
• (c) the widower, if the son and daughter are not eligible or for any valid reason they are not willing to accept the appointment.
• (d) a widowed daughter, if the widower, son and unmarried daughter are not eligible or for any valid reason they are not willing to accept the appointment.

3. xxx 4 xxx”

8.1 From the aforesaid rules it can be seen that only ‘unmarried daughter’ and ‘widowed daughter’ who were dependent upon the deceased female Government servant at the time of her death and living with her can be said to be ‘dependent’ of a deceased Government servant and that ‘an unmarried daughter’ and ‘widowed daughter’ only can be said to be eligible for appointment on compassionate ground in the case of death of the female Government servant. Rule 2 and Rule 3 reproduced hereinabove do not include ‘divorced daughter’ as eligible for appointment on compassionate ground and even as ‘dependent’. As observed hereinabove and even as held by this Court in the case of N.C. Santhosh (Supra), the norms prevailing on the date of consideration of the application should be the basis of consideration of claim for compassionate appointment. The word ‘divorced daughter’ has been added subsequently by Amendment, 2021. Therefore, at the relevant time when the deceased employee died and when the original writ petitioner – respondent herein made an application for appointment on compassionate ground the ‘divorced daughter’ were not eligible for appointment on compassionate ground and the ‘divorced daughter’ was not within the definition of ‘dependent.’

8.2 Apart from the above one additional aspect needs to be noticed, which the High Court has failed to consider. It is to be noted that the deceased employee died on 25.03.2012. The respondent herein – original writ petitioner at that time was a married daughter. Her marriage was subsisting on the date of the death of the deceased i.e. on 25.03.2012. Immediately on the death of the deceased employee, the respondent initiated the divorced proceedings under Section 13B of the Hindu Marriage Act, 1955 on 12.09.2012 for decree of divorce by mutual consent. By Judgment dated 20.03.2013, the Learned Principal Civil Judge, Mandya granted the decree of divorce by mutual consent. That immediately on the very next day i.e. on 21.03.2013, the respondent herein on the basis of the decree of divorce by mutual consent applied for appointment on compassionate ground. The aforesaid chronology of dates and events would suggest that only for the purpose of getting appointment on compassionate ground the decree of divorce by mutual consent has been obtained. Otherwise, as a married daughter she was not entitled to the appointment on compassionate ground. Therefore, looking to the aforesaid facts and circumstances of the case, otherwise also the High Court ought not to have directed the appellants to consider the application of the respondent herein for appointment on compassionate ground as ‘divorced daughter’. This is one additional ground to reject the application of the respondent for appointment on compassionate ground.

8.3 Even otherwise, it is required to be noted that at the time when the deceased employee died on 25.03.2012 the marriage between the respondent and her husband was subsisting. Therefore, at the time when the deceased employee died she was a married daughter and therefore, also cannot be said to be ‘dependent’ as defined under Rule 2 of the Rules 1996. Therefore, even if it is assumed that the ‘divorced daughter’ may fall in the same class of ‘unmarried daughter’ and ‘widowed daughter’ in that case also the date on which the deceased employee died she – respondent herein was not the ‘divorced daughter’ as she obtained the divorce by mutual consent subsequent to the death of the deceased employee. Therefore, also the respondent shall not be eligible for the appointment on compassionate ground on the death of her mother and deceased employee.

9. In view of the above and for the reasons stated above, the appeal succeeds. The impugned common judgment and order passed by the High Court in Writ Petition No.5609/2017 is hereby quashed and set aside. The Writ Petition before the High Court is dismissed accordingly. However, there shall be no order as to costs.

……………… J.
(M. R. SHAH)

……………… J.
(ANIRUDDHA BOSE)

New Delhi, September 13, 2021

The post Divorced daughter was not eligible for compassionate appointment – Supreme Court Judgement appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

No. 20011/2/2019-Estt. (D)
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel & Training

North Block, New Delhi
Dated: 13th August, 2021.

OFFICE MEMORANDUM

Subject: Judgement of the Hon’ble Supreme Court of India in Civil Appeal No. 8833-8835 of 2019 of K. Meghachandra Singh & Ors. Vs Ningam Siro & Ors – revised instructions relating to seniority of direct recruits and promotees and inter-se seniority thereof – reg.

The undersigned is directed to say that the fundamental principles of determining inter se seniority of direct recruits and promotees in Central Civil Services/posts were laid down in the Department of Personnel & Training (DOPT) O.M. No. 9/11/55-RPS dated 29.12.1959, which inter alia provided that, the in/er se seniority of direct recruits and promotees shall he determined according to the rotation of vacancies between direct recruits and promotees, which shall be based on the quotas of vacancies, provided in the Recruitment Rules for direct recruitment and promotion respectively.

2. The carry forward of unfilled slots of a vacancy year. to be filled up by direct recruits of later years. was dispensed with through modified instructions contained in DoPT G.M. No. 35014/2/80- Fstt.(D) dated 7.2.1986 which provides that rotation of quotas for purpose of determining seniority would take place only to the extent of available direct recruits and the promotees. The unfilled direct recruitment/ promotion quota vacancies would be carried forward and added to the corresponding direct recruitment/promotion quota vacancies of the next year (and to subsequent years where necessary) for determining the total number of direct recruitment or promotion vacancies to filled up as per usual practice. For determining inter-se seniority between direct recruits and promotees, it would be done as per rotation of quota to the extent of number of vacancies for direct recruits and promotees. as determined according to the quota for that year and the additional direct recruits/ promotees selected against the carried forward vacancies of the previous year, to be placed en-bloc below the last promotee/direct recruit, as the case may be, in the seniority list. All the existing instructions on seniority were consolidated by DoPT through a single O.M. No. 2201 1/7/86-Estt(D) dated 03.07.1986.
3. Subsequently. vide G.M. No. 20011/1/2006-Estt.(D) dated 3.3.2008. the tenii ‘available’ as provided in OMs dated 7.2.1986/3.7.1986 was sought to be clarified, wherein it was clarified that the actual year of appointment, both in the casc of direct recruits and promotees, would be reckoned as the year of availability for the purpose of rotation and fixation of inter se seniority. This was, however, challenged before the Hon’ble Supreme Court of India in Civil Appeal No. 7514-7515/2005in the case ofN.R. Parmar v/s Union of India & Others. In its judgement dated 27.11.2012 in the said casc. the Hon’ble Apex Court held that the available direct recruits and promotees, for assignment of inter se seniority, would refer to the direct recruits and promotees who are appointed against the vacancies of a particular recruitment year. where the recruitment year shall be the year in which the recruitment process for either of the modes of recruitment (direct recruitment or promotion) for a particular vacancy year is initiated viz, initiation of recruitment process against a vacancy year would mean the date of sending of requisition for filling up of vacancies to the recruiting agency in the case of direct recruits or the date on which a proposal, complete in all respects, is sent to UPSC/ ChairmanDPC for convening of DPC to fill up vacancies earmarked for promotion.
4. The law laid down in the N.R. Parmar case relating to determination of inter se seniority between direct recruits and promotees in a grade/post was reviewed by the Hon’ble Supreme Court of India in Civil Appeal No. 8833-8835 of 2019 lansing out of Sl,P(C) Nos.19565-19567 of 2019] in the matter of K. Meghachandra Singh & Ors. Vs Ningam Siro & Ors. In its Order dated 19.11.2019 in CA No. 8833-35/2019 of IC. Mcghachandra Singh &Ors. Vs Ningam Siro & Ors, the Hon’ble Supreme Court of India has overruled the decision of the Court in NR Parmar case.
5. In para 40 of the Order dated 19.11.2019, the Hon’ble Court inter-alia held that “the law on the issue is correctly declared in J.C. Patnaik (Supra). Consequently, we disapprove the norms on assessment of inter-se seniority, suggested in N. R. Parmar Accordingly, the decision in N.R. Parniar is overruled. however, it Lc made clear that this decision will not affect the inter-se seniority already based on N.R. Parmar and the same is protected. This decision will apply prospectively except where seniority is to be fixed under the relevant Rules from the date of vacancy/the date of advertisement.” Further, in para 38, the Hon ‘ble court had held as under:

“38. When we carefully read the judgment in N. R. Parmar Supra,). it appears to us that the referred OMs (dated 07.02.1986 and 03.07.1986) were not properly construed in the judgment. Contrary to the eventual finding, the said two OMs had made it clear that seniority of the direct recruits be declared only from the date of appointment and not from the date of initiation of recruitment process. But surprisingly, the judgment while referring to the
illustration given in the OM infact overlooks the effect of the said illustration. According to us, the illustration extracted in the N. R. Parmar Supra) itself makes it clear that the vacancies which were intended/br direct recruitment in a particular year (1986) which were filled in the next year (1987) could he taken into consideration only in the subsequent year’s seniority list but not in the seniority list of 1986. In fact, this was indicated in the two OMs dated 07.02. 1986 and 03.07.1986 and that is why the Government issued the subsequent OM on 03.03.2008 by way of clarification of the two earlier OMs.

6. The determination of inter se seniority of direct recruits and promotees, as laid down by theHon’ble Supreme Court of India, in its Order dated 19.11.2019 in K. Meghachandra Singh case, has been carefully examined in consultation with the Department of Legal Affairs, and the following principles have emerged:-

• (i) The rotation of quota, based on the percentage of vacancies allocated to direct recruitment and promotion in the notified recruitment rules/service rules, shall continue to operate for determining vacancies to be filled by the respective quotas in a recruitment year. The term ‘recruitment year’ shall mean the year in which the vacancy arises. However, inter se seniority between direct recruits and promotees, who are appointed against the vacancies
  of respective quota, would be reckoned with reference to the year in which they are appointed i.e. year in which they are borne in the cadre or fonal appointment order is issued.
• (ii) The terms recruitnient’ and appointment’ have to be read harmoniously and the determination of seniority for recruitees would depend on their actual appointment and not the initiation of recruitment process itself It thus follows that the seniority of direct recruits and promotees henceforth stands delinked from the vacancy/year of vacancy.
• (iii) The source of legitimacy of determination of seniority would be with reference to the date of joining of a person against a vacancy. irrespective of the fact that it may have arisen in the previous year(s) and not being a carried forward vacancy of any quota.
• (iv) If adequate number of direct recruits (or promotees) do not become available, “rotation of quotas’ for the purpose of determining seniority, would stop after the available direct recruits and promotees are assigned their slots on joining in a particular year.
• (v) The term ‘available both in the case of direct recruits as well as promotees, for the purpose of rotation and fixation of seniority, shall be the actual year of appointment after declaration of results/selection and completion of pre-appointment formalities as prescribed.
• (v ) Thus, appointees who join in the concerned recruitment year and those who join in subsequent year(s), would figure in the seniority list of the respective years of their being appointed. To that extent it may not be necessary to go into the question of quota meant for direct recruits and promotees to find out as to the year in which the vacancy arose against which the recruitment is made.

7. Based on the above, it has been decided to modify the instructions relating to determination of inter se seniority between promotees and direct recruits as under:

• (i) DoPT’s O.M. No. 20011/1/2012-Estt.(D) dated 4.3.2014. issued in pursuance of Order dated 27.11.2012 in N.R. Parmar case. is treated as non-est/withdrawn well 19.11.2019.
• (ii) As the Order dated 19.11.2019 is prospective, cases of inter xc seniority of direct recruits an proniotees. already decided in terms of O.M. No. 2001 l/l/2012-Estt.(D) dated 4.3 .2014, shall not be disturbed. i.e. old cases are not to be reopened.
• (iii) In case of direct recruits and promotees appointed/joined during the period between 27.11.2012 and 18.11.2019 and in which case inter sc seniority could not be finalised by 18.11.2019, shall
• also be governed by the provisions of O.Ms. dated 7.2.1986/3.7.1986 ead with OM dated 4.3.2014, unless where a different formulation /manner of determination of seniority has been decided by any Tribunal or Court.
• (iv) For cases where the recruitment process has been initiated by the administrative Department/ Cadre Authority before 19.11.2019 and where some appointments have been made before 19.11.2019 and remaining on or after 19.11.2019, the inter sc seniority of direct recruits and promotees shall also be governed by the provisions of O.Ms. dated 7.2.1986/3.7.1986 read with OM dated 4.3.2014 to ensure equal treatment of such appointees.

• (a) The rotation of quota based on the percentage of vacancies allocated to direct recruitment and promotion in the notified recruitment rules/service rules, shall continue to operate for determination of vacancics to he filled by the respective quotas in a recruitment year.
• (b) Determination of inter-se seniority between direct recruits and promotees, who are appointed against the vacancies of respective quota. would, however, be reckoned with reference to the year in which they are appointed i.e. year in which they are borne in the cadre or formal appointment order is issued. In case. where the recruitment year is the same as the year of appointment. the appointees shall be given seniority of that year.
• (c) Where in case of promotees or direct recruits. the year of appointment is the next year or any year subsequent to the recruitment year. the seniority of such promotees and direct recruits would be determined with reference to the year of their actual joining/appointment to the post. since they were not able to join in the said recruitment year in which the vacancy arose. Thus, they would get seniority of the year in which they actually join i.e. year in which formal appointment order is issued or they are borne in the service/cadre and that they shall not get seniority of any earlier year (viz. year of Vacancy/panel or year in which recruitment process is initiated).
• (d) In terms of OMs dated 7.2.1986/3.7.1986, rotation between proniotees and direct recruits for the purpose of determination of inter-se seniority, would be undertaken only to the extent of available direct recruits and proniotees in a particular year. The term ‘available direct recruits or promotees’ appearing in these OMs dated 7.2.1986/3.7.1986, for the purpose of rotation of quota in fixation of inter-se seniority, shall mean the actual number of
  direct recruits and promotees appointed during the year after declaration of results/selection and completion of pre-appointment formalities as prescribed.
• (e) As per (d) above, if adequate number of direct recruits (or promotees) do not become available in a particular year. the rotation of quotas” for the purpose of determining interse seniority, would stop after the available direct recruits and promotes are assigned their slots on their appointment/joining in that year.
• (f) If no direct recruit is available in a particular year. available promotees would he bunched together in accordance with their position in the panel approved for promotion. Similarly. if no promotee is available in that year. available direct recruits would be bunched together, as per their position obtained in the selection process.
• (g) In case, where direct recruits or promotees. as the case may be, belonging to two more selections/panel approved for promotion. join in the same year, then those who have been appointed/joined as a result of earlier selection/panel would be placed senior in the seniority list to those been appointed/joined as a result of a subsequent selection/panel.
• (h) Instructions contained in OMs dated 7.2.1986 and 3.7.1986, stand modified to the extent indicated in above paragraphs.

8. These provisions shall conic into effect from 19.11.2019 onwards.
9. All Ministries/ Departments are requested to bring these instructions to the notice of all concerned.

(Pradeep Kumar)
Under Secretary to the Govt of India

The post Judgement of Supreme Court revised instructions relating to seniority of direct recruits and promotees and inter-se seniority DoPT appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

Latest DoPT Orders 2020

No.49014/7/2020- Estt.(C)
Government of India
Ministry of Personnel, PG & Pensions
Department of Personnel & Training

North Block, New Delhi
Dated: 7th October, 2020

OFFICE MEMORANDUM

Subject: Regularisation of qualified workers appointed against sanctioned posts- Uma Devi judgement- facts/clarification- reg.

The undersigned is directed to say that the instructions for Regularisation of qualified workers appointed against sanctioned posts in the light of Hon’ble Supreme Court’s Judgement dated 10.04.2006 in case of Uma Devi were issued vide DoPT’s O.M. No. 49019/1/2006-Estt(C) dated 11.12.2006. The above instructions state that:

“…… in the case of Secretary State of Karnataka and Ors. Vs. Uma Devi it was directed that any public appointment has to be in terms of the Constitutional scheme. However, the Supreme Court in para 44 of the aforesaid judgement directed that the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one time measure the services of such irregularly appointed, who are duly qualified persons in terms of the statutory recruitment rules for the post and who have worked for ten years or more in duly sanctioned posts but not under cover of orders of courts or tribunals.

Also check: MACP ON PROMOTIONAL HIERARCHY – MACP Supreme Court Order – Heard & Reserved – Order dated 23 Jan 2020

Accordingly a copy of the above judgement is forwarded to all Ministries/Departments for implementation of the aforesaid direction of the Supreme Court.”

2. In this regard, various cases have been received in this department seeking clarifications regarding implementation of the above judgement. Therefore, it has been decided that further important aspects of the judgement dated 10.04.2006 may be enunciated for the purpose of clarity of the judgement. These important points as quoted
from the judgement are reproduced below:

i. Equality of opportunity is the hallmark for public employment and it is in terms of the Constitutional scheme only (Para 1).

ii The filling of vacancies cannot be done in a haphazard manner or based on patronage or other considerations (Para 2).

ii, The State is meant to be a model employer and can make appointments only in accordance with the rules framed under Article 309 of the Constitution (Para 5).

iv. Regularization is not and cannot be a mode of recruitment by any State within the meaning of Article 12 of the Constitution of India, or any body or authority governed by a statutory Act or the Rules framed thereunder. Regularization, furthermore, cannot give permanence to an employee whose services are ad hoc in nature. The fact that some persons had been working for a long time would not mean that they had acquired a right for regularization. (Para 27).

v. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution (Para 30).

vi Wit is a contractual appointment, the appointment comes to an end at the end of the contract (Para 34).

vii. Regularization, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further by-passing of the Constitutional requirement and regularizing or making permanent, those not duly appointed as per the Constitutional scheme (Para 44).

viii In cases relating to service in the commercial taxes department, the High Court has directed that those engaged on daily wages, be paid wages equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively appointed. The objection taken was to the direction for payment from the dates of engagement. We find that the High Court had clearly gone wrong in directing that these employees be paid salary equal to the salary and allowances that are being paid to the regular employees of their cadre in government service, with effect from the dates from which they were respectively engaged or appointed. It was not open to the High Court to impose such an obligation on the State when the very question before the High Court in the case was whether these employees were entitled to have equal pay for equal work so called and were entitled to any other benefit. They had also been engaged in the teeth of directions not to do so. We are, therefore, of the view that, at pest, the Division Bench of the High Court should have directed that wages equal to the salary that are being paid to regular employees be paid to these daily wage employees with effect from the date of its judgment. Hence, that part of the direction of the Division Bench is modified and it is directed that these daily wage earners be paid wages equal to the salary at the lowest grade of employees of their cadre in the Commercial Taxes Department in government service, from the date of the judgment of the Division Bench of the High Court. Since, they are only daily wage earners, there would be no question of other allowances being paid to them (Para 46).

Also read: Notional Increment on retirement 30th June DoPT – Madras High Court Order

3. Additionally, it is also stated that vide the judgement of State of Karnataka Vs. M.L Kesari dated 03.08.2010, the Hon’ble Supreme Court had clarified some aspects of the Uma Devi judgement which are pertinent for proper understanding of the said judgement dated 10.04.2006. These aspects brought out in the M.L. Kesari judgement are reproduced as under:

i The employee concerned should have worked for 10 years or more in duly sanctioned post without the benefit or protection of the interim order of any court or tribunal. In other words, the State Government or its instrumentality should have employed the employee and continued him in service voluntarily and continuously for more than ten years.

ii. The appointment of such employee should not be illegal, even if irregular. Where the appointments are not made or continued against sanctioned posts or where the persons appointed do not possess the prescribed minimum qualifications, the appointments will be considered to be illegal. But where the person employed possessed the prescribed qualifications and was working against sanctioned posts, but had been selected without undergoing the process of open competitive selection, such appointments are considered to be irregular.

iii. The employees who were entitled to be considered in terms of Para 53 of the decision in Uma devi, will not lose their right to be considered for regularization, merely because the one-time exercise was completed without considering their cases, or because the six month period mentioned in para 44 of Uma devi has expired. The one-time exercise should consider all daily-wage/adhoc/those employees who had put in 10 years of continuous service as on 10.4.2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 44 of Uma devi, but did not consider the cases of some employees who were entitled to the benefit of para 44 of Uma devi, the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one time exercise will be concluded only when all the employees who are entitled to be considered in terms of Para 44 of Umadevi, are so considered.

4. It is also clarified that regularisation under Uma Devi judgement was only a one time exercise.

5. It is also emphasized that all concerned administrative authorities should take steps to effectively defend the Court cases on the basis of principles in the Uma Devi judgement and instructions of DoPT within the limitation period without giving any scope to the Courts to decide the cases against the Government on grounds of delay in filing its reply/appeal. Any laxity in the matter to comply with these instructions leading to adverse orders of the Courts shall be viewed seriously inviting disciplinary action in the matter.

(Umesh Kuntar Bhatia)
Deputy Secretary to the Government of India
Telefax: 23094471

To:

All Ministries/Departments of Government of India.
(As per the Standard List)

Source: DoPT

The post Regularisation of qualified workers appointed against sanctioned posts – Uma Devi judgement – facts – DoPT Orders 2020 appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

C.A. No.6770/2013 @ SLP (C) No. 1427 of 2009

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6770 OF 2013
(Arising out of Special Leave Petition (Civil) No. 1427 of 2009)

State of Jharkhand & Ors.

….. Appellant(s)

Vs.

Jitendra Kumar Srivastava & Anr.

…..Respondent(s)

WITH
C.A. No. 6771/2013
(arising out of SLP(C) No. 1428 of 2009)

JUDGMENT

A.K. Sikri, J

1.Leave granted.

2. Crisp and short question which arises for consideration in these cases is as to whether, in the absence of any provision in the Pension Rules, the State Government can withhold a part of pension and/or gratuity during the pendency of departmental/ criminal proceedings? The High Court has – answered this question, vide the impugned judgment, in the negative and hence directed the appellant to release the withheld dues to the respondent.

Not happy with this outcome, the State of Jharkhand has preferred this appeal.

3. For the sake of convenience we will gather the facts from Civil Appeal arising out of SLP(Civil) No. 1427 of 2009. Only facts which need to be noted, giving rise to the aforesaid questions of law, are the following:

The respondent was working in the Department of Animal Husbandry and Fisheries. He joined the said Department in the Government of Bihar on 2.11.1966. On 16.4.1996, two cases were registered against him under various Sections of the Indian Penal Code as well as Prevention of Corruption Act, alleging serious financial irregularities during the years 1990-1991, 1991-1992 when he was posted as Artificial Insemination Officer, Ranchi. On promulgation of the Bihar Reorganisation Act, 2000, State of Jharkhand (Appellant herein) came into existence and the Respondent became the employee of the appellant State. Prosecution, in respect of the aforesaid two criminal cases against the respondent is pending. On 30th January, 2002, the appellant also ordered initiation of disciplinary action against him. While these proceedings were still pending, on attaining the age of superannuation, the respondent retired from the post of Artificial Insemination Officer, Ranchi on 31.08.2002.

The post Supreme Court Judgement: Withholding of Pension or Gratuity appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.7423-7429 OF 2018
(Arising out of S.L.P. (Civil) Nos. 19832-19838 OF 2017)
Narendra Kumar Tiwari & Ors. Etc. ….Appellants

versus
The State of Jharkhand & Ors. Etc. ….Respondents

JUDGMENT
Madan B. Lokur, J.

1. Leave granted

2. These appeals arise out of the common judgment and order dated 17th November, 2016 passed by a Division Bench of the High Court of Jharkhand in a batch of writ petitions relating to the regularisation of daily wage or contract workers on different posts. The writ petitioners (now appellants) were denied the benefit of regularisation in view of the provisions of the Jharkhand Sarkar ke Adhinasth Aniyamit Rup se Niyukt Ewam Karyarat Karmiyo ki Sewa Niyamitikaran Niyamawali, 2015 (hereinafter referred to as the Regularisation Rules).

3. The admitted position is that the appellants are irregularly appointed employees of the State Government. They sought regularisation of their status on the ground that they had put in more than 10 years of service and were therefore entitled to be regularised. The High Court took the view that the decision of the Constitution Bench of this Court in Secretary, State of Karnataka and Ors. v. Umadevi (3) and Ors.1 did not permit their regularisation since they had not worked for 10 years on the cut-off date of 10th April, 2006 when the Constitution Bench rendered its decision. According to the High Court, the Regularisation Rules provided a one-time measure of regularisation of the services of irregularly appointed employees based on the cut-off date of 10th April,2006 in terms of the judgment of the Constitution Bench. Therefore, since the appellants had not put in 10 years of service they could not be regularised.

4. The appellants had contended before the High Court that the State of Jharkhand was created only on 15th November, 2000 and therefore no one could have completed 10 years of service with the State of Jharkhand on the cut-off date of 10th April, 2006. Therefore, no one could get the benefit of the Regularisation Rules which made the entire legislative exercise totally meaningless. The appellants had pointed out in the High Court that the State had issued Resolutions on 18th July, 2009 and 19th July, 2009 permitting the regularisation of some employees of the State, who had obviously not put in 10 years of service with the State.Consequently, it was submitted that the appellants were discriminated against for no fault of theirs and in an irrational manner.

5. Having heard learned counsel for the parties and having considered the decision of the Constitution Bench in Umadevi (3) as well as the subsequent decision of this Court explaining Umadevi (3) in State of Karnataka and Ors. v. M.L. Kesari and Ors.2, we are of the view that the High Court has erred in taking an impractical view of the directions in Umadevi (3) as well as its consideration in Kesari.

6. The decision in Umadevi (3) was intended to put a full stop to the somewhat pernicious practice of irregularly or illegally appointing daily wage workers and continuing with them indefinitely. In fact, in paragraph 49 of the Report, it was pointed out that the rule of law requires appointments to be made in a constitutional manner and the State cannot be permitted to perpetuate an irregularity in the matter of public employment which would adversely affect those who could be employed in terms of the constitutional scheme. It is for this reason that the concept of a one-time measure and a cut-off date was introduced in the hope and expectation that the State would cease and desist from making irregular or illegal appointments and instead make appointments on a regular basis.

7. The concept of a one-time measure was further explained in Kesari in paragraphs 9, 10 and 11 of the Report which read as follows:

9. The term “one-time measure” has to be understood in its proper perspective. This would normally mean that after the decision in Umadevi (3), each department or each instrumentality should undertake a one-time exercise and prepare a list of all casual, daily-wage or ad hoc employees who have been working for more than ten years without the intervention of courts and tribunals and subject them to a process verification as to whether they are working against vacant posts and possess the requisite qualification for the post and if so, regularise their services.

10. At the end of six months from the date of decision in Umadevi (3), cases of several daily-wage/ad hoc/casual employees were still pending before courts. Consequently, several departments and instrumentalities did not commence the one-time regularisation process. On the other hand, some government departments or instrumentalities undertook the onetime exercise excluding several employees from consideration either on the ground that their cases were pending in courts or due to sheer oversight. In such circumstances, the employees who were entitled to be considered in terms of para 53 of the decision in Umadevi (3), will not lose their right to be considered for regularisation, merely because the one-time exercise was completed without considering their cases, or because the sixmonth period mentioned in para 53 of Umadevi (3) has expired. The one-time exercise should consider all daily-wage/ad hoc/casual employees who had put in 10 years of continuous service as on 10-4-2006 without availing the protection of any interim orders of courts or tribunals. If any employer had held the one-time exercise in terms of para 53 of Umadevi (3), but did not consider the cases of some employees who were entitled to the benefit of para 53 of Umadevi (3), the employer concerned should consider their cases also, as a continuation of the one-time exercise. The one-time exercise will be concluded only when all the employees who are entitled to be considered in terms of para 53 of Umadevi (3), are so considered.

11. The object behind the said direction in para 53 of Umadevi (3) is twofold. First is to ensure that those who have put in more than ten years of continuous service without the protection of any interim orders of courts or tribunals, before the date of decision in Umadevi (3) was rendered, are considered for regularisation in view of their long service. Second is to ensure that the departments / instrumentalities do not perpetuate the practice of employing persons on daily-wage/ad hoc/casual basis for long periods and then periodically regularise them on the ground that they have served for more than ten years, thereby defeating the constitutional or statutory provisions relating to recruitment and appointment. The true effect of the direction is that all persons who have worked for more than ten years as on 10-4-2006 [the date of decision in Umadevi (3)] without the protection of any interim order of any court or tribunal, in vacant posts, possessing the requisite qualification, are entitled to be considered for regularisation. The fact that the employer has not undertaken such exercise of regularisation within six months of the decision in Umadevi (3) or that such exercise was undertaken only in regard to a limited few, will not disentitle such employees, the right to be considered for regularisation in terms of the above directions in Umadevi (3) as a one-time measure.

8. The purpose and intent of the decision in Umadevi (3) was therefore two-fold, namely, to prevent irregular or illegal appointments in the future and secondly, to confer a benefit on those who had been irregularly appointed in the past. The fact that the State of Jharkhand continued with the irregular appointments for almost a decade after the decision in Umadevi (3) is a clear indication that it believes that it was all right to continue with irregular appointments, and whenever required, terminate the services of the irregularly appointed employees on the ground that they were irregularly appointed. This is nothing but a form of exploitation of the employees by not giving them the benefits of regularisation and by placing the sword of Damocles over their head. This is precisely what Umadevi (3) and Kesari sought to avoid.

9. If a strict and literal interpretation, forgetting the spirit of the decision of the Constitution Bench in Umadevi (3), is to be taken into consideration then no irregularly appointed employee of the State of Jharkhand could ever be regularised since that State came into existence only on 15th November, 2000 and the cut-off date was fixed as 10th April,2006. In other words, in this manner the pernicious practice of indefinitely continuing irregularly appointed employees would be perpetuated contrary to the intent of the Constitution Bench.

10. The High Court as well as the State of Jharkhand ought to have considered the entire issue in a contextual perspective and not only from the point of view of the interest of the State, financial or otherwise – the interest of the employees is also required to be kept in mind. What has eventually been achieved by the State of Jharkhand is to short circuit the process of regular appointments and instead make appointments on an irregular basis. This is hardly good governance.

11. Under the circumstances, we are of the view that the Regularisation Rules must be given a pragmatic interpretation and the appellants, if they have completed 10 years of service on the date of promulgation of the Regularisation Rules, ought to be given the benefit of the service rendered by them. If they have completed 10 years of service they should be regularised unless there is some valid objection to their regularisation like misconduct etc.

12. The impugned judgment and order passed by the High Court is set aside in view of our conclusions. The State should take a decision within four months from today on regularisation of the status of the appellants.

13. The appeals are accordingly disposed of.

14. We may add that that it would be worthwhile for the State of Jharkhand to henceforth consider making regular appointments only and dropping the idea of making irregular appointments so as to short circuit the process of regular appointments.

………………………J.
(Madan B. Lokur)

.……………………..J.
(Deepak Gupta)

New Delhi: August 01, 2018

The post Supreme Court Judgement – Casual Labour Regularisation: Applicable to those Appointed after 1993 & 2006 who completed 10 years service appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.

“12. Thus O.A. is allowed.  Respondents are  accordingly  directed  to act  strictly  in  accordance  with  DOPT  O.M.  dated  11.9.2008   as amended/clarified on 29.9.2008 and 18.11.2008, granting  her  CCL  for the due period.  No costs.”

                       “It is evident from the provisions of sub r.(3) of r.43-C  of  the rules that CCL  can  be  granted  only  according  to  the  conditions mentioned in the sub-rule, and that one of the conditions is that  CCL shall not be granted for more than three spells in  a  calendar  year. It means that CCL is not to be granted for a  continuous  period,  but only in spells.                       From the provisions of sub r.(3) of r.43-C of the rules it is also evident that a spell of CCL can be for as less as 16 days.  This means that in a given case a person, though  eligible  to  take  CCL  for  a maximum period of 730 days, can be granted CCL in three  spells  in  a calendar year for as less as 48 days.”The High Court further observed:                  “Whether an eligible person should be granted CCL at  all, and, if so, for what period,  are questions  to  be  decided  by  the competent authority; for the person is to  work  in  the  interest  of public service, and  ignoring  public  service  exigencies  that  must prevail over private exigencies  no leave can be granted.”

“Child Care Leave for 730 days. ***

Women  employees having minor children may be granted Child Care Leave by an authority competent to grant leave, for a  maximum  period of two years (i.e. 730 days) during their entire  service  for  taking care of up to two children, whether for rearing or to look  after  any of their needs like examination, sickness, etc. Child Care Leave shall not be admissible if the child is eighteen  years  of  age  or  older. During the period of such leave, the women  employees  shall  be  paid leave salary equal to the pay drawn immediately before  proceeding  on  leave.  It may be availed of in more than one spell. Child Care  Leave shall not be debited against the leave account.  Child Care Leave  may also be  allowed  for  the  third  year  as  leave  not  due  (without production of medical certificate).  It may be combined with leave of the kind due and admissible.”

The question as to whether child care leave  would  be  admissible for the third child below the age of 18 years  and  the  procedure for grant of child care leave have  been  under  consideration  in this Department, and it has now been decided as follows:-
i)      Child  Care  Leave  shall  be  admissible  for  two  eldest surviving children only.
ii)        The leave account for child care leave shall be maintained in the pro forma enclosed, and it shall be kept  along  with  the Service Book of the Government Servant concerned.”

1) A women Government servant having minor children below the  age of eighteen years and who has no earned leave  at  her  credit, may be granted child care leave by an  authority  competent  to grant leave, for a maximum period of two years, i.e.  730  days during the  entire  service  for  taking  care  of  up  to  two children, whether for rearing or to look  after  any  of  their needs like examination, sickness, etc.
2) During the period of child care leave, she shall be paid  leave salary equal to the pay drawn immediately before proceeding  on leave.
3) Child care leave may be combined with leave of any other kind.
4)  Notwithstanding  the  requirement  of  production  of  medical certificate contained in sub-rule (1) of Rule  30  or  sub-rule (1) of Rule 31, leave of the kind due and admissible (including commuted leave not exceeding 60 days and leave not due) up to a maximum of one year, if applied for, be granted in continuation with child care leave granted under sub-rule (1).
5) Child care leave may be availed of in more than one spell.
6) Child care  leave  shall  not  be  debited  against  the  leave  account.”

(1) Leave cannot be claimed as of right.
(2) When the exigencies of public service so require, leave of any kind may be refused or revoked by the authority competent to grant it, but it shall not be open to that authority to alter the kind of leave due and applied for except at the written request of the Government servant.”
However, under Sub-Rule (2) of Rule 7 leave can be refused or revoked by the competent authority in the case of exigencies of public service.

The post Supreme Court Judgement on CIVIL APPEAL NO. 4506 OF 2014: Govt woman employee can get uninterrupted two-year child care leave (CCL) appeared first on CENTRAL GOVERNMENT EMPLOYEES NEWS.