Reservations to SC and ST in promotions in the posts of Assistant Engineer (Civil) in Public Works Department

Supreme Court Judgement - Reservations to SC and ST in promotions

Non-Reportable

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

Civil Appeal No. 1226 of 2020
[Arising out of S.L.P. (Civil) No. 23701 of 2019]

Mukesh Kumar & Anr.

…. Appellant(s)

Versus

The State of Uttarakhand & Ors.

…. Resondent(s)

WITH

JUDGMENT

L. NAGESWARA RAO, J.

1. The Controversy in the above Appeals pertains to the reservations to Scheduled Castes and Scheduled Tribes in promotions in the posts of Assistant Engineer (Civil) in Public Works Department, Government of Uttarakhand.
2. The Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short “the 1994 Act”) provided for reservation in public services and posts in favour of persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens. Section 3(1) of the said Act stipulated reservation at the stage of direct recruitment. According to Section 3(7) of the 1994 Act, the Government Orders providing reservation for appointment to public posts filled up by promotion which were existing on the date of commencement of the 1994 Act shall continue till they are modified or revoked. After the formation of the State of Uttarakhand in 2001, the Uttar Pradesh Public Services (Scheduled Caste, Scheduled Tribe and Other Backward Caste Reservation) Act, 1994 was made applicable to the State of Uttaranchal by a Notification dated 30.08.2001 with a modification in the percentage of reservations. 21% reservation for Scheduled Castes was modified to 19% and 2% for Scheduled Tribes was increased to 4%. Likewise, 21% reservation provided in the 1994 Act for Other Backward Classes was altered to 14%.
   
   Also check: MACP ON PROMOTIONAL HIERARCHY – MACP Supreme Court Order – Heard & Reserved – Order dated 23 Jan 2020
3. A Division Bench of the High Court of Judicature at Allahabad in Mukund Kumar Shrivastava v. State of U.P.1 upheld the validity of Rule 8-A of the Uttar Pradesh Servants Government Seniority Rules, 1991 (for short “the Seniority Rules”) which dealt with consequential seniority of persons belonging to Scheduled Castes and Scheduled Tribes. Later, in Prem Kumar Singh v. State of U.P.2, another Division Bench of the High Court of Judicature at Allahabad, Lucknow Bench held that the judgment in Mukund Kumar Shrivastava (supra) is per incuriam and not a binding precedent. In Prem Kumar Singh’s case (supra), the High Court declared Section 3(7) of the 1994 Act and Rule 8-A of the Seniority Rules unconstitutional. While declaring the correctness of the judgments of the High Court, this Court by its judgment in Uttar Pradesh Power Corporation v. Rajesh Kumar3 held that Section 3(7) of the 1994 Act is unconstitutional insofar as it is contrary to the dictum in M. Nagaraj & Ors. v. Union of India & Ors.4
4. The challenge to Section 3(7) of the 1994 Act, as extended to the State of Uttarakhand, was upheld by the High Court of Uttarakhand in Vinod Prakash Nautiyal & Others v. State of Uttarakhand & Others5. Relying upon the judgment of this Court in U.P. Power Corporation (supra), the High Court of Uttarakhand declared Section 3(7) of the 1994 Act unconstitutional and directed that no promotion can be given by the State by taking recourse to Section 3(7) of the 1994 Act. The application filed for review of the judgment in Vinod Prakash Nautiyal (supra) was dismissed. By way of implementation of the judgment of the High Court dated 06.07.2011 in Vinod Prakash Nautiyal (supra), a committee was constituted by the Government of Uttarakhand for collection of quantifiable data relating to the backwardness of the reserved communities in the State of Uttarakhand and the inadequacy of their representation in public posts.
5. On 05.09.2012, the State Government decided that all posts in public services in the State shall be filled up without providing any reservations to Scheduled Castes and Scheduled Tribes. All Government Orders to the contrary were superseded by the proceeding dated 05.09.2012. Mr. Gyan Chand who was working as Assistant Commissioner (Civil), State Tax and belonging to Scheduled Caste Community filed a Writ Petition for quashing the proceeding dated 05.09.2012. The High Court by its judgment dated 01.04.2019 struck down the proceeding dated 05.09.2012 as being contrary to the law declared by this Court in Indra Sawhney v. Union of India & Ors.6 and Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.7 While referring to the judgments of this Court in M. Nagaraj (supra) and Jarnail Singh (supra), the High Court held that Article 16(4) of the Constitution in an enabling provision. The High Court observed that it is not necessary for the State Government to collect quantifiable data regarding representation of Scheduled Castes and Scheduled Tribes in State services or regarding their backwardness before providing reservation in their favour in promotion posts. The High Court was of the opinion that the judgment in Vinod Prakash Nautiyal (supra) related to the constitutional validity of Section 3(7) of the 1994 Act alone and the Notifications pertaining to reservation in promotion in favour of Scheduled Castes and Scheduled Tribes were not set aside. The Appeals arising out of Civil Appeal @ S.L.P.(Civil) No.25508 of 2019 and Civil Appeal @S.L.P. (Civil) @ Diary No.39572 of 2019 have been filed assailing the judgment of the High Court dated 01.04.2019.
6. Vinod Kumar and three others belonging to the Scheduled Castes working in the Public Works Department, Government of Uttarakhand filed a Writ Petition in the High Court of Uttarakhand seeking a direction to the Respondent therein to prepare a separate list of eligible candidates as per Rule 5 of the Uttarakhand Promotion by Selection (on posts outside the purview of Public Service Commission) Eligibility Rules, 2003 and to prepare a separate list for each category of eligible candidates of General, Scheduled Castes and Scheduled Tribes for promotion to the post of Assistant Engineer (Civil) in Public Works Department. A further direction to the State Government was sought to hold a departmental promotion committee for promotion to the posts of Assistant Engineers after providing reservation to Scheduled Castes and Scheduled Tribes in accordance with the Government Orders dated 30.08.2001, 31.08.2001 and 17.02.2004 by which reservation was provided in promotion. The Writ Petition was disposed of by the High Court on 15.07.2019 with a direction to the State Government to implement reservations in promotion by promoting only members of Scheduled Castes and Scheduled Tribes in future vacancies to maintain the quota earmarked for the said categories. Civil Appeals @ S.L.P.(Civil) No. 23701 of 2019 and Civil Appeal @ S.L.P. (Civil) No.22640 of 2019 are challenging the judgment dated 15.07.2019.
7. In the meanwhile, the Respondents in Writ Petition (Civil) No.117 of 2019 i.e. the State of Uttarakhand filed an application for review of the judgment dated 01.04.2019. The High Court realized that it committed an apparent error in its judgment dated 01.04.2019, while deciding the Writ Petition by referring to the judgment of this Court in Jarnail Singh (supra). The High Court clarified that the State Government is obligated to collect quantifiable data regarding inadequacy of representation of the Scheduled Castes and Scheduled Tribes in state services before providing reservation in promotion. The High Court clarified that it is not necessary for the State Government to collect data regarding backwardness of the Scheduled Castes and Scheduled Tribes in the light of the direction of this Court in Jarnail Singh (supra). The High Court also observed that the State is not obligated to provide reservation in promotions to members of Scheduled Castes and Scheduled Tribes as Article 16(4-A) of the Constitution is an enabling provision. However, reservation can be provided by the State Government only after collecting data regarding inadequacy of representation of the Scheduled Castes and Scheduled Tribes in state services. As such, the High Court directed the State Government to collect quantifiable data regarding inadequacy of the representation of the Scheduled Castes and Scheduled Tribes in Government services which would enable the State Government to take a considered decision on providing or not providing reservation. The State Government was directed to take a decision whether to provide reservation or not only after considering the data relating to the adequacy or inadequacy of representation of Scheduled Castes and Scheduled Tribes in the services of the State within a period of four months from the date of receipt of the judgment. Aggrieved by the order dated 15.11.2019 passed in Review Petition in W. P. (S/B) No.117 of 2019, the Civil Appeal @ S.L.P.(Civil) No.27715 of 2019, Civil Appeal @ S.L.P.(Civil) No.28039 of 2019, Civil Appeal @ S.L.P. (Civil) No.27735 of 2019 and Civil Appeal @ S.L.P.(Civil) No. 28947 of 2019 have been filed.
8. Mr. Ranjit Kumar, learned Senior Counsel appearing for the Appellants in SLP (C) No. 25508 of 2019, Mr. Mukul Rohtagi and Mr. P.S. Narsimha, learned Senior Counsel appearing for the State of Uttarakhand contended that there is no fundamental right to claim reservation in appointments or promotions to public posts. There is no constitutional duty on the part of the State Government to provide reservations. Article 16 (4) and 16 (4-A) are merely enabling provisions. On 15.09.2012, the State of Uttarakhand, after due consideration, decided that there shall be no reservation in promotions. They relied upon the judgment of the High Court of Uttarakhand in Vinod Prakash Nautiyal (supra) by which Section 3 (7) of the 1994 Act was declared unconstitutional. It was submitted by them that the State Government has not brought any law in terms of the judgment of this Court in M. Nagaraj & Ors. (supra). It was urged by the learned Senior Counsel that there is no necessity for collection of any quantifiable data after the Government has taken a decision not to provide reservations. The collection of data, according to them, is required only to justify a decision to provide reservation. It was also submitted by them that according to a judgment of this Court in Suresh Chand Gautam v. State of U.P.8 no direction can be given by the Court to the State Government to collect quantifiable data on the basis of which a decision to provide reservation should be taken. They placed reliance on the judgment of this Court in M. Nagaraj & Ors. (supra) to argue that the State is not bound to make reservations.
9. On the other hand, Mr. Kapil Sibal, Mr. Dushyant Dave and Mr. Colin Gonsalves, learned Senior Counsel and Dr. K.S. Chauhan, learned counsel, appearing for the reserved category employees submitted that the State cannot refuse to collect quantifiable data regarding the adequacy or inadequacy of representation of the Scheduled Castes and Scheduled Tribes in public services. They submitted that there is an obligation on the State to provide reservations in promotions for upliftment of the members of the Scheduled Castes and Scheduled Tribes as mandated by Article 16 (4) and 16 (4-A) of the Constitution of India. The right to equality of persons belonging to Scheduled Castes and Scheduled Tribes cannot be defeated by the State Government by not discharging its constitutional obligation of implementing Article 16 (4) and 16 (4-A) of the Constitution. They urged before this Court that according to the law laid down by this Court, the State has a duty to decide not to provide reservations only after the State is satisfied that the Scheduled Castes and Scheduled Tribes are adequately represented in public posts on the basis of quantifiable data. According to them, Suresh Chand Gautam (supra) was not correctly decided and needs reconsideration. It was also submitted on behalf of the reserved category candidates that a Committee was constituted by the Government of Uttarakhand to collect quantifiable data regarding the adequacy of representation of persons belonging to Scheduled Castes and Schedules Tribes in public posts in accordance with the judgment of this Court in M. Nagaraj (supra). According to the report submitted by the Committee, there is inadequate representation of the Scheduled Castes and Scheduled Tribes in government services in the State of Uttarakhand. The said report was approved by the State Cabinet. It was contended by the learned counsel that the State Government was duty bound to provide reservations on the basis of the data that was collected by the Committee.
10. The central point that arises for our consideration in these appeals is whether the State Government is bound to make reservations in public posts and whether the decision by the State Government not to provide reservations can be only on the basis of quantifiable data relating to adequacy of representation of persons belonging to Scheduled Castes and Scheduled Tribes.
11. Article 16 (4) and 16 (4-A) do not confer fundamental right to claim reservations in promotion9. By relying upon earlier judgments of this Court, it was held in Ajit Singh (II) (supra) that Article 16 (4) and 16 (4-A) are in the nature of enabling provisions, vesting a discretion on the State Government to consider providing reservations, if the circumstances so warrant. It is settled law that the State Government cannot be directed to provide reservations for appointment in public posts10. Similarly, the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes in matters of promotions. However, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing inadequacy of representation of that class in public services. If the decision of the State Government to provide reservations in promotion is challenged, the State concerned shall have to place before the Court the requisite quantifiable data and satisfy the Court that such reservations became necessary on account of inadequacy of representation of Scheduled Castes and Scheduled Tribes in a particular class or classes of posts without affecting general efficiency of administration as mandated by Article 335 of the Constitution11.
12. Article 16 (4) and 16 (4-A) empower the State to make reservation in matters of appointment and promotion in favour of the Scheduled Castes and Scheduled Tribes ‘if in the opinion of the State they are not adequately represented in the services of the State’. It is for the State Government to decide whether reservations are required in the matter of appointment and promotions to public posts. The language in clauses (4) and (4-A) of Article 16 is clear, according to which, the inadequacy of representation is a matter within the subjective satisfaction of the State. The State can form its own opinion on the basis of the material it has in its possession already or it may gather such material through a Commission/Committee, person or authority. All that is required is that there must be some material on the basis of which the opinion is formed. The Court should show due deference to the opinion of the State which does not, however, mean that the opinion formed is beyond judicial scrutiny altogether. The scope and reach of judicial scrutiny in matters within the subjective satisfaction of the executive are extensively stated in Barium Chemicals v. Company Law Board12, which need not be reiterated13.
13. On the basis of the settled law of this Court pertaining to the scope of Article 16 (4) and 16 (4-A) of the Constitution, we proceed to determine the correctness of the judgments of the High Court. As noted above, the judgment of the High Court in Writ Petition No.117 of 2019 is to the effect that the proceeding dated 05.09.2012 issued by the Government of Uttarakhand by which it was decided to fill up the promotional posts or vacancies without providing reservations to Scheduled Castes and Scheduled Tribes was struck down. It was held by the High Court that the notifications that were issued by the Government of Uttarakhand, providing for reservations, continued to operate. A direction was issued by the High Court that reservation in promotion in favour of the Scheduled Castes and Scheduled Tribes can be made by the State Government without having quantifiable data regarding the backwardness of the Scheduled Castes and Schedules Tribes or the adequacy of their representation in the Government services.
14. The application filed for review of the judgment in Writ Petition No.117 of 2019 was decided by a judgment dated 08.11.2019 by the High Court. Realising the error committed in its judgment dated 01.04.2019, the High Court modified the judgment by holding that according to the decision of this Court in Jarnail Singh v. Lachhmi Narain Gupta14, the State was obligated to collect quantifiable data regarding the inadequacy of representation of the Scheduled Castes and Scheduled Tribes in public services. The High Court observed that Article 16 (4) and 16 (4-A) of the Constitution are enabling provisions, and the State Government is not obligated to provide reservations in promotion in favour of members of the Scheduled Castes and Scheduled Tribes. The High Court expressed its opinion that reservation in promotion to public posts can be provided by the State Government only after collecting data regarding the inadequacy of their representation in service. In light of the above, the High Court directed the State Government to collect quantifiable data regarding the adequacy or inadequacy of representation of Scheduled Castes and Scheduled Tribes in state services which would enable the State Government to take a considered decision as to whether or not reservation in promotion should be provided in favour of Scheduled Castes and Scheduled Tribes. The collection of quantifiable data was directed to be completed within four months from the date of receipt of the judgment.
15. The High Court committed an error by striking down the proceeding dated 05.09.2012 by which a decision was taken not to provide reservation in promotions without giving any reasons, except stating that the said decision is contrary to the judgments of this Court in Jarnail Singh and Indra Sawhney (supra). A perusal of the proceeding dated 05.09.2012 would show that the decision taken by the State Government was by way of implementation of the judgment of the High Court of Uttarakhand in Vinod Prakash Nautiyal (supra) by which Section 3(7) of the 1994 Act, relating to the provision of reservation in promotion, was struck down. By its judgment dated 10.07.2012 in Vinod Prakash Nautiyal (supra), the High Court declared Section 3 (7) of the 1994 Act as contrary to the law laid down by this Court in M. Nagaraj (supra). There was a further declaration that no promotion can be given by the State of Uttarakhand by taking recourse to Section 3 (7) of the 1994 Act. However, the State Government was given liberty to bring out another legislation in accordance with the mandate of the Constitution of India, by following the judgment in M. Nagaraj (supra). This Court dismissed the SLP filed against the said judgment. At this juncture, it is relevant to mention that certain notifications were issued after the formation of the State of Uttarakhand by which reservation in promotion to public posts as provided in the State of Uttar Pradesh was adapted with certain modifications. As stated above, the Government of Uttarakhand appointed a Committee for collection of quantifiable data pertaining to the adequacy or inadequacy of representation of the members of Scheduled Castes and Scheduled Tribes in public services in the State. The Committee submitted its report, according to which the representation of Scheduled Castes and Scheduled Tribes is inadequate. The State Cabinet approved the recommendation of the Committee on 12.04.2012. Ultimately, the State Government by a proceeding dated 05.09.2012 decided to set aside all previous Government orders relating to reservation in promotions to Government services in the State. As the Government is not bound to provide reservation in promotions, we are of the opinion that there is no justifiable reason for the High Court to have declared the proceeding dated 05.09.2012 as illegal.
16. The direction that was issued to the State Government to collect quantifiable data pertaining to the adequacy or inadequacy of representation of persons belonging to Scheduled Castes and Scheduled Tribes in Government services is the subject matter of challenge in some appeals before us. In view of the law laid down by this Court, there is no doubt that the State Government is not bound to make reservations. There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the Court directing the State Government to provide reservations. It is abundantly clear from the judgments of this Court in Indra Sawhney, Ajit Singh (II), M. Nagaraj and Jarnail Singh (supra) that Article 16 (4) and 16 (4-A) are enabling provisions and the collection of quantifiable data showing inadequacy of representation of Scheduled Castes and Scheduled Tribes in public service is a sine qua non for providing reservations in promotions. The data to be collected by the State Government is only to justify reservation to be made in the matter of appointment or promotion to public posts, according to Article 16 (4) and 16 (4-A) of the Constitution. As such, collection of data regarding the inadequate representation of members of the Scheduled Castes and Schedules Tribes, as noted above, is a pre requisite for providing reservations, and is not required when the State Government decided not to provide reservations. Not being bound to provide reservations in promotions, the State is not required to justify its decision on the basis of quantifiable data, showing that there is adequate representation of members of the Scheduled Castes and Schedules Tribes in State services. Even if the under-representation of Scheduled Castes and Schedules Tribes in public services is brought to the notice of this Court no mandamus can be issued by this Court to the State Government to provide reservation in light of the law laid down by this Court in C.A. Rajendran (supra) and Suresh Chand Gautam (supra). Therefore, the direction given by the High Court that the State Government should first collect data regarding the adequacy or inadequacy of representation of Scheduled Castes and Scheduled Tribes in Government services on the basis of which the State Government should take a decision whether or not to provide reservation in promotion is contrary to the law laid down by this Court and is accordingly set aside. Yet another direction given by the High Court in its judgment dated 15.07.2019, directing that ll future vacancies that are to be filled up by promotion in the posts of Assistant Engineer, should only be from the members of Scheduled Castes and Scheuled Tribes, is wholly unjustifiable and is hence set aside.
17. The submission made on behalf of the reserved category candidates that the judgment of this Court in Suresh Chand Gautam (supra) needs reconsideration is without substance in view of the findings recorded above. We are in agreement with the decision of this Court in Suresh Chand Gautam (supra) in which it was held that no mandamus can be issued by the Court to the State to collect quantifiable data relating to adequacy of representation of the Scheduled Castes and Scheduled Tribes in public services.
18. The High Court was not informed about the appointment of a Committee for collection of quantifiable data and the completion of such exercise by the Committee, which was approved by the State Cabinet. However, the State Government took a conscious decision not to provide reservation in promotions. The direction given by the High Court to collect quantifiable data, therefore, is wholly unnecessary as the State is already in possession of the said data.
19. In view of the aforesaid, the impugned judgments of the High Court in Writ Petition (S/B) No. 351 of 2019, Writ Petition (S/B) No. 117 of 2019 and Review Application No. 389 of 2019 in Writ Petition (S/B) No. 117 of 2019 are set aside.
20. The Appeals are disposed of accordingly.

……………
[L. NAGESWARA RAO]

……………
[HEMANT GUPTA]

New Delhi,
February 07, 2020

Supreme Court Judgement: Withholding of Pension or Gratuity

Supreme Court Judgement: Withholding of Pension or Gratuity
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.

Supreme Court Judgement - Casual Labour Regularisation: Applicable to those Appointed after 1993 & 2006 who completed 10 years service

Supreme Court Judgement - Casual Labour Regularisation: Applicable to those Appointed after 1993 & 2006 who completed 10 years service

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

Supreme Court Judgement on CIVIL APPEAL NO. 4506 OF 2014: Govt woman employee can get uninterrupted two-year child care leave (CCL)

Supreme Court Judgement on CIVIL APPEAL NO. 4506 OF 2014: Govt woman employee can get uninterrupted two-year child care leave (CCL)

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 

CIVIL APPEAL NO. 4506 OF 2014

(arising out of SLP (C) No. 33244 of 2012)

KAKALI GHOSH		… APPELLANT
	VERSUS
CHIEF SECRETARY, ANDAMAN & NICOBAR ADMINISTRATION AND ORS		…RESPONDENTS

J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

 

Leave granted.

 

2.       This appeal has been  directed  against  the  judgment  dated  18th September, 2012 passed by the High Court of Calcutta, Circuit Bench at  Port Blair.  By the impugned judgment, the Division Bench of  the Calcutta  High Court allowed the writ petition and set aside the judgment and  order  dated 30th April, 2012 passed by the  Central  Administrative  Tribunal  Calcutta, Circuit Bench at Port Blair (hereinafter referred to as, ‘the Tribunal’).

3.       The only question which requires to be determined  in  this  appeal is  whether  a  woman  employee  of  the  Central  Government  can  ask  for uninterrupted 730 days of Child Care Leave (hereinafter referred to as, -

‘the CCL’)  under Rule 43-C of the  Central Civil  Services  (Leave)  Rules, 1972 (hereinafter referred to as, ‘the Rules’).

4.       The appellant initially applied for CCL for six  months  commencing from 5th July, 2011 by her letter dated 16th May, 2011 to take care  of  her son who was in 10th standard.  In her application, she  intimated  that  she is the only person to look after her minor son and her  mother  is  a  heart patient and has not recovered from the shock due to  the  sudden  demise  of her  father;  her  father-in-law  is  almost  bed ridden   and   in   such circumstances, she was not in a position to perform her duties  effectively.  While her application was pending, she was transferred to Campbell  Bay  in Nicobar District (Andaman and Nicobar) where she joined on 06th July,  2011. By her subsequent letter  dated  14th  February,  2012  she  requested  the competent authority to allow her to avail CCL for two years commencing  from 21st May, 2012.  However, the authorities allowed only 45  days  of  CCL  by their Office Order No. 254 dated 16th March, 2012.

5.        Aggrieved  appellant  then  moved  before  the  Tribunal  in  O.A. No.47/A&N/2012 which allowed the application  by  order  dated  30th  April,2012 with following observation:-

“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.”

6.       The order passed by the  Tribunal  was  challenged  by  respondents before the Calcutta High Court which by impugned judgment  and  order  dated 18th September, 2012 while observing that  leave  cannot  be  claimed  as  a right, held as follows:

                       “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.”

7.       Learned counsel for the appellant submitted that there  is  no  bar to grant uninterrupted 730 days of CCL under Rule 43-C.  The High Court  was not justified in holding that CCL can  be  granted  in  three  spells  in  a calendar year as less as 48 days at a time.  It was also contended that  the respondents failed to record ground to deny uninterrupted CCL  to  appellant for the rest of the period.

8.       Per contra, according to respondents, Rule  43-C  does  not  permit uninterrupted CCL for 730 days as held by the High Court.

9.       Before we proceed to discuss the merits or otherwise of  the  above contentions, it will be necessary for us to refer the relevant Rule and  the guidelines issued by the Government of India from time to time.

10.      The Government of  India  from  its  Department  of  Personnel  and Training vide O.M. No. 13018/2/2008-Estt. (L)  dated  11th  September,  2008 intimated that CCL can be granted for maximum period of 730 days during  the entire service period to a woman government employee for taking care  of  up

to two children, relevant portion of which reads as follows:

“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.”

11.      It was followed by Circular issued by Government of India from  its Personnel  and Training Department vide O.M.  No. 13018/2/2008-  Estt.  (L), dated   29th September,   2008   by  which    it    was    clarified    that CCL

would  be also admissible to a  woman  government  employee  to  look  after third child below 18 years of age, which is as follows:

 

“(2) Clarifications:-

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.”

12.      Rule  43-C  was  subsequently  inserted  by  Government  of  India, Department of Personnel and Training, Notification No.  F.No.  11012/1/2009- Estt. (L) dated 1st December, 2009, published  in  G.S.R.  No.  170  in  the Gazette of India dated 5th December, 2009 giving effect from 1st  September, 2008 as quoted below:-

 

“43-C. Child Care Leave

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.”

13. On perusal of circulars and Rule 43-C, it is apparent that a woman government employee having minor children below 18 years can avail CCL for maximum period of 730 days i.e. during the entire service period for taking care of upto two children. The care of children is not for rearing the smaller child but also to look after any of their needs like examination, sickness etc. Sub Rule (3) of Rule 43-C allows woman government employee to combine CCL with leave of any other kind. Under Sub Rule (4) of Rule 43- C leave of the kind due and admissible to woman government employee including commuted leave not exceeding 60 days; leave not due up to a maximum of one year, can be applied for and granted in continuation with CCL granted under Sub Rule (1). From plain reading of Sub Rules (3) and (4) of Rule 43-C it is clear that CCL even beyond 730 days can be granted by combining other leave if due. The finding of the High Court is based neither on Rule 43-C nor on guidelines issued by the Central Government. The Tribunal was correct in directing the respondents to act strictly in accordance with the guidelines issued by the Government of India and Rule 43-C.

 

14. In the present case, the appellant claimed for 730 days of CCL at a stretch to ensure success of her son in the forthcoming secondary/senior examinations (10th/11th standard). It is not in dispute that son was minor below 18 years of age when she applied for CCL. This is apparent from the fact that the competent authority allowed 45 days of CCL in favour of the appellant. However, no reason has been shown by the competent authority for disallowing rest of the period of leave.

 

15. Leave cannot be claimed as of right as per Rule 7, which reads as follows:

“7. Right to leave 

(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.

16. In fact, Government of India from its Ministry of Home Affairs and Department of Personnel and Training all the time encourage the government employees to take leave regularly, preferably annually by its Circular issued by the Government of India M.H.A.O.M. No. 6/51/60-Ests. (A), dated 25th January, 1961, reiterated vide Government of India letter dated 22/27th March, 2001. As per those circulars where all applications for leave cannot, in the interest of public service, be granted at the same time, the leave sanctioning authority may draw up phased programme for the grant of leave to the applicants by turn with due regard to the principles enunciated under the aforesaid circulars.

 

17. In the present case the respondents have not shown any reason to refuse 730 days continuous leave. The grounds taken by them and as held by High Court cannot be accepted for the reasons mentioned above.

18. For the reasons aforesaid, we set aside the impugned judgment dated 18th September, 2012 passed by the Division Bench of Calcutta High Court, Circuit Bench at Port Blair and affirm the judgment and order dated 30th April, 2012 passed by the Tribunal with a direction to the respondents to comply with the directions issued by the Tribunal within three months from the date of receipt/production of this judgment.

19. The appeal is allowed with aforesaid directions. No costs.

………………………………………………….J.

(SUDHANSU JYOTI MUKHOPADHAYA) 

……………………………………………….J. 

(V. GOPALA GOWDA) 

NEW DELHI, 

APRIL 15, 2014. 

Source: http://judis.nic.in/supremecourt/imgs1.aspx?filename=41412