Marriage does not change the caste.

Marriage of a Vaishya with a Jatav.

Appellant was born in “Agarwal” family. She married Dr. Veer Singh, who happens to belong to “Jatav” Community (said to be one of the Scheduled Castes). A caste certificate dated 29.11.1991 was issued by District Magistrate/Collector, Bulandshahar certifying the appellant as of Scheduled Caste (Jatav). Based on the academic qualifications and the caste certificate, she was appointed initially as a Post Graduate Teacher (Hindi) vide letter dated 16.12.1993 at Kendriya Vidyalaya No.1, Pathankot, Punjab. During the course of her service, she completed her M.Ed and served the institution for about 21 years as teacher.
Continue reading “Marriage does not change the caste.”


Appointment of persons with criminal background in police forcce

Acquittal by itself not enough for appointment:

The question involved in these appeals is whether the candidature of the respondents who had disclosed their involvement in the criminal cases and also their acquittal could be canceled by the Screening Committee on the ground that they are not suitable for the post of constable in Chandigarh Police and whether the court can substitute its views for the decision taken by the Screening Committee.

Screening Committee examined each and every case of the respondents and reasonings for their acquittal and taken the decision. While deciding whether a person involved in a criminal case has been acquitted or discharged should be appointed to a post in a police force, nature of offence in which he is involved, whether it was an honourable acquittal or only an extension of benefit of doubt because of witnesses turned hostile and flaws in the prosecution are all the aspects to be considered by the Screening Committee for taking the decision whether the candidate is suitable for the post. As pointed out earlier, the Screening Committee examined each and every case and reasonings for their acquittal and took decision that the respondents are not suitable for the post of Constable in Chandigarh Police. The procedure followed is as per guideline 2(A)(b) and object of such screening is to ensure that only persons with impeccable character enters police force. While so, the court cannot substitute its views for the decision of the Screening Committee.

In a catena of judgments, the importance of integrity and high standard of conduct in police force has been emphasized. As held in Mehar Singh case, the decision of the Screening Committee must be taken as final unless it is mala fide. In the case in hand, there is nothing to suggest that the decision of the Screening Committee is mala fide. The decision of the Screening Committee that the respondents are not suitable for being appointed to the post of Constable does not call for interference.

[Source: Union Territory, Chandigarh  vs Pradeep Kumar, decided by SC on 8 January, 2018]

Jurisdiction of Court created under Kerala Cooperative Societies Act

Industrial or Labour Court vs. Cooperative Court

Whether a service dispute arising between the Cooperative Society’s Employee and his Employer is capable of being tried by the forum prescribed under the KCS Act or by the machinery provided under the ID Act or it is capable of being tried under both the Acts leaving the aggrieved person to select one forum under any of the Acts of his choice out of the two for getting his/her service dispute decided by such forum?

First, the language of Section 69 of the KCS Act as it originally stood is materially different from the language used in its counter part Sections of two earlier repealed Kerala Co-operative Societies Acts of 1932 and 1951. This departure made in the language employed in Section 69 of the KCS Act qua language of earlier two repealed Acts is significant and has a material bearing while answering the questions. Continue reading “Jurisdiction of Court created under Kerala Cooperative Societies Act”

Reservation procedure when Reserved candidate selected on merits.

Reserve candidate qualifying on merits

Often, in a competitive examination held for the purpose of admission in technical and medical institutions etc. some candidates belonging to reserved category/categories, qualify for the higher ranking on the basis of their own merit and depending on their performance in the common entrance test, are placed in the general merit list. Such class of candidates belonging to reserved categories who qualify on their own merit, to be placed in general merit list, are described, for the purpose of convenience, as Meritorious Reserved Candidate (MRC). It is by now well settled that a MRC who goes on to occupy a general category seat is not counted against the quota reserved for a reserved category candidates, but is treated as an open competition candidate or general merit candidate. This Court in the case of Indra Sawnhey v. Union of India, 1992 Supp (3) SCC 217 has observed thus: Continue reading “Reservation procedure when Reserved candidate selected on merits.”

Opportunity of hearing before penalty of dismissal

Does principles of natural justice would require an opportunity to be given to the delinquent employee before imposition of penalty?

The Disciplinary Authority after supplying the Report of the Inquiring Authority had given an opportunity to the Respondent to submit his explanation, which he did. In view of the disability of the Disciplinary Authority in passing an “order of removal” under Rule 68 (2), the entire record was sent to the Appointing Authority who examined the matter and passed an “order of removal”.

In State Bank of India v. Ranjit Kumar Chakraborty (supra) which is the basis of the judgment of the High Court, it was held that the Appointing Authority could not pass an order imposing a major penalty. In that case, the Disciplinary Authority sent the Records to the Appointing Authority who passed order of “dismissal from service”. It is not clear from the judgment as to whether the delinquent officer in that case was given a notice by the Disciplinary Authority before the records were sent to the Appointing Authority. Continue reading “Opportunity of hearing before penalty of dismissal”

Non supply of Enquiry Report does not vitiate order of dismissal

Effect of non-supply of Enquiry Report to dismissed employee:

Test of prejudice:

When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual.

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Termination of retainer of Government Pleaders

Termination of appointment of Pleaders without stating any reason:

In Maharashtra the relevant Rules governing the appointment and termination of Government pleaders is Rules 30 (5) and (6) of the which reads as under:

“30. Period of Appointment.

(5) A Law Officer shall be liable to be removed from his office at any time, if he is guilty of any act or conduct which, in the opinion of Government, in the Law and Judiciary Department, is incompatible with his duties as such Law Officer. The decision of Government in the Law and Judiciary Department in such cases shall be final.

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Rule of Law and right of employment

Termination of service in rule of Law:

Termination without assigning any reason or opportunity of hearing is arbitrary and violative of equality clause in Article 14 of the Constitution:

Regulation 9(b) of the Delhi Road Transport Authority (Conditions of Appointment and Service) Regulations, 1952 which confers powers on the authority to terminate the services of a permanent and confirmed employee by issuing a notice terminating the services or by making payment in lieu of notice without assigning any reasons in the order and without giving any opportunity of hearing Continue reading “Rule of Law and right of employment”

Reservation in promotion in Public Employment in India

Positive discrimination to provide reservation in promotion:

Challenge to reservation in promotion:

Petitioners had invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-Fifth Amendment] Act, 2001 inserting Article 16(4A) of the Constitution retrospectively from 17.6.1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure. Thus the width and amplitude of the right to equal opportunity in public employment, in the context of reservation, broadly fell for consideration before a full bench of five judges of Supreme Court of India.

Right of equal opportunity in public employment:

The constitutional principle of equality is inherent in the Rule of Law. However, its reach is limited because its primary concern is not with the content of the law but with its enforcement and application. The Rule of Law is satisfied when laws are applied or enforced equally, that is, evenhandedly, free of bias and without irrational distinction. The concept of equality allows differential treatment but it prevents distinctions that are not properly justified. Justification needs each case to be decided on case to case basis.

Test of Basic Structure Doctrine:

The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted, flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand.

Width and Amplitude test:

The test for judging the width of the power and the test for adjudicating the exercise of power by the concerned State are two different tests which warrant two different judicial approaches. In the present case, as stated above, we are required to test the width of the power under the impugned amendments. Therefore, we have to apply “the width test”. In applying “the width test” we have to see whether the impugned amendments obliterate the constitutional limitations mentioned in Article 16(4), namely, backwardness and inadequacy of representation. As stated above, these limitations are not obliterated by the impugned amendments. However, the question still remains whether the concerned State has identified and valued the circumstances justifying it to make reservation. This question has to be decided case- wise.

Thus the main issue concerns the “extent of reservation”. In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.

Therefore, in each case the Court has got to be satisfied that the State has exercised its opinion in making reservations in promotions for SCs and STs and for which the concerned State will have to place before the Court the requisite quantifiable data in each case and satisfy the Court that such reservations became necessary on account of inadequacy of representation of SCs/ STs in a particular class or classes of posts without affecting general efficiency of service as mandated under Article 335 of the Constitution.

[Source: M. Nagraj v. Union of India, (Supreme Court of India)]