Supreme Court Half Yearly Digest On Service Law [Jan – Jun 2023]

Judicial review cannot be exercised to re-appreciate evidence in departmental enquiry proceedings. A Constitutional Court, while exercising its power of judicial review, cannot decide the case as if it is the first stage of the case, as if inquiry is still being conducted and an inquiry report is being prepared. Evidence cannot be re-appreciated at the stage of judicial review in a disciplinary proceeding as if conviction in a criminal trial is being re-examined by the next higher court. Indian Oil Corporation v. Ajit Kumar Singh, 2023 LiveLaw (SC) 478 : AIR 2023 SC 2388 : (2023) 5 SCR 447 : 2023 INSC 546

Dismissed from Service - Matter stood closed in the year 2004 - The review petition was also dismissed - The petitioner has not filed a curative petition but has filed a writ petition under Article 32 of the Constitution of India claiming that injustice has been done to him and the matter should be reopened - No legal system can have a scenario where a person keeps on raking up the issue again and again once it is resolved at highest level. This is complete wastage of judicial time. The writ petition is dismissed with costs of Rs.10,000/-, though we limit the amount of costs considering the petitioner is a dismissed person, to be deposited with the Supreme Court Advocates-on-Record Welfare Fund to be utilized for the SCBA library. K.C. Tharakan v. State Bank of India, 2023 LiveLaw (SC) 439

Inquiry proceedings civil servant can be done away with in national security interest. Dr. V.R. Sanal Kumar v. Union of India, 2023 LiveLaw (SC) 432 : AIR 2023 SC 2391 : 2023 INSC 526

Pension cannot be denied to employee citing wrongful deductions made towards the CPF scheme. Retired employees cannot be made to suffer due to mistakes committed by their employers. Calcutta State Transport Corporation v. Ashit Chakraborty, 2023 LiveLaw (SC) 419 : AIR 2023 SC 2270 : (2023) 6 SCR 203 : 2023 INSC 505

Retirement age of Anganwadi workers - the Supreme Court set aside a judgment of the Tripura High Court which directed the State Government to raise the retirement age of Anganwadi workers from 60 years to 65 years. State of Tripura v. Rina Purkayastha, 2023 LiveLaw (SC) 387

Retirement age of Anganwadi workers – the Supreme Court found fault with the High Court for issuing a mandamus to the State Government to change its policy regarding the retirement age of workers. The High Court reasoned that since 90% of expenses of the Integrated Child Development Services Scheme - under which the Anganwadi workers are engaged- are borne by the Central Government, there will not be a fundamental increase in the burden of the State if their retirement age is increased. Held, that this line of reasoning adopted by the High Court is unacceptable. State of Tripura v. Rina Purkayastha, 2023 LiveLaw (SC) 387

Retirement age of Anganwadi workers – Looking to the very nature of the work and the structure of services, when the state government is the primary authority to decide the service conditions, no mandamus can be issued to the state government to change its policy, regardless of the proportion of the share of the central government in the expenditure burden. State of Tripura v. Rina Purkayastha, 2023 LiveLaw (SC) 387

Retirement age of Anganwadi workers – Supporting the High Court judgment, the amicus curiae contended that the Court can always issue relevant directions to ensure that fundamental rights and protections available to the citizens are not violated. The amicus also pointed out the retirement age of Anganwadi Workers was 65 years in many states and stressed that parity in employment is a reasonable expectation. Held, that as regards the scheme in question, it is clear that even while certain propositions/expectations had been laid by the central government, the existing statutory norms do not provide for uniform age limit for retirement of AWs/AHs; and it is for the state government to decide as regards the service conditions, including the age of discharge. (Para 10) State of Tripura v. Rina Purkayastha, 2023 LiveLaw (SC) 387

Retirement age of Anganwadi workers – by enhancing the age of retirement, the requirement of substitute is delayed, remains bereft of logic, and that in any case, that does not provide a legal ground to force the state government to alter its policy only because such expectations are stated by the central government or because some other states have provided for such an age of discharge. (Para 11) State of Tripura v. Rina Purkayastha, 2023 LiveLaw (SC) 387

Retirement age of Anganwadi workers – the decision cited by the learned counsel dealing with different eventualities and different principles do not provide any basis for issuance of a mandamus to the state government to change its policy, particularly when the policy is otherwise not shown to be suffering from any illegality or irrationality; rather the state is categorical in its submission that by way of this policy, the age of discharge of AWs/AHs is placed at par with those of the other employees of the state government and Public Sectors Undertakings in the state. (Para 11) State of Tripura v. Rina Purkayastha, 2023 LiveLaw (SC) 387

Supreme Court grants notional seniority to private secretaries at Delhi High Court whose marks increased post re-evaluation of answer sheets. Sunil v. High Court of Delhi, 2023 LiveLaw (SC) 374 : AIR 2023 SC 2850 : (2023) 5 SCR 87 : 2023 INSC 459

Seniority – Re-evaluation of Answer Sheets - Once on re-evaluation, the marks are increased the respective candidates whose marks are increased will have to be placed at appropriate place in the merit list. Non-grant of seniority based on revised marks, thus, would render the process of re-evaluation redundant. (Para 7) Sunil v. High Court of Delhi, 2023 LiveLaw (SC) 374 : AIR 2023 SC 2850 : (2023) 5 SCR 87 : 2023 INSC 459

The Supreme Court rejects the claim of employees to count the entire period of work-charged service for pension. Uday Pratap Thakur v. State of Bihar, 2023 LiveLaw (SC) 371 : AIR 2023 SC 2971 : (2023) 4 SCR 530 : 2023 INSC 461

Allopathy doctors and doctors of indigenous medicine cannot be said to be performing “equal work” so as to be entitled to “equal pay”. State of Gujarat v. Dr. P.A. Bhatt, 2023 LiveLaw (SC) 350 : AIR 2023 SC 2164 : 2023 INSC 434

Government servants cannot claim the benefits of Double Overtime Allowance Benefits under the Factories Act, dehors the service rules - Unlike those employed in factories and industrial establishments, persons in public service who are holders of civil posts or in the civil services of the Union or the State are required to place themselves at the disposal of the Government all the time - Persons holding civil posts or in the civil services of the State enjoy certain privileges and hence, the claim made by the respondents ought to have been tested by the Tribunal and the High Court, in the proper perspective to see whether it is an attempt to get the best of both the worlds. Security Printing & Minting Corporation of India Ltd. v. Vijay D. Kasbe, 2023 LiveLaw (SC) 321 : AIR 2023 SC 2042 : 2023 INSC 388

Service Law - there are three different categories of employment, if not more, in the country. They are, (i) employment which is statutorily protected under labour welfare legislations, so as to prevent exploitation and unfair labour practices; (ii) employment which falls outside the purview of the labour welfare legislations and hence, governed solely by the terms of the contract; and (iii) employment of persons to civil posts or in the civil services of the Union or the State. Any Court or Tribunal adjudicating a dispute relating to conditions of service of an employee, should keep in mind the different parameters applicable to these three different categories of employment. (Para 23) Security Printing & Minting Corporation of India Ltd. v. Vijay D. Kasbe, 2023 LiveLaw (SC) 321 : AIR 2023 SC 2042 : 2023 INSC 388

Government employees cannot be denied the annual increment merely because they are to retire on the very next day of earning the increment - The entitlement to receive increment therefore crystallises when the government servant completes requisite length of service with good conduct and becomes payable on the succeeding day - Increment is not an "incentive" to perform well the next year - The entitlement to the benefit of annual increment is due to the service already rendered. (Para 6.7) Director (Admn and HR) KPTCL v. C.P. Mundinamani, 2023 LiveLaw (SC) 296 : AIR 2023 SC 1956 : (2023) 3 SCR 332 : 2023 INSC 352

In absence of sanctioned post, the State cannot be compelled to create the post and absorb the persons who are continuing in service of the State - Direction of the High Court to reinstate after creating the posts and absorb the respondents based on their qualification is not sustainable in law. (Para 54 to 57) Government of Tamil Nadu v. Tamil Nadu Makkal Nala Paniyalargal, 2023 LiveLaw (SC) 294 : (2023) 3 SCR 390 : 2023 INSC 350

For out of turn promotion, parity can't be claimed. State of Madhya Pradesh v. Sanjay Shukla, 2023 LiveLaw (SC) 277

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

It is trite law that courts would not prescribe the qualification and/or declare the equivalency of a course. Until and unless rule itself prescribes the equivalency, namely, different courses being treated alike, the courts would not supplement its views or substitute its views to that of expert bodies. Unnikrishnan C.V. v. Union of India, 2023 LiveLaw (SC) 256 : AIR 2023 SC 1943 : 2023 INSC 304

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

Service of Employees in Zilla Parishad should be counted for seniority when ZP has been absorbed by Municipal Corporation. Maharashtra Rajya Padvidhar Prathamik Shikshak v. Pune Municipal Corporation, 2023 LiveLaw (SC) 229 : (2023) 2 SCR 981 : 2023 INSC 258

Pension - Supreme Court holds that the employees of Orissa Khadi and Village Industries Board are not entitled to pension on a par with Government employees - Employees of a body corporate created by the State cannot be treated as State Government employees in all respects. Such a corollary proposition would practically amount to merging of the Board with the State Government - Entitlement of pension will be as per the Regulations of the Board. (Para 16.1) State of Orissa v. Orissa Khadi and Village Industries Board Karmachari Sangh, 2023 LiveLaw (SC) 214 : (2023) 2 SCR 1049 : 2023 INSC 247

Payment for Home Guards - Home Guards working in the State of Odisha are entitled to Duty Allowance as per the minimum amount of pay to which the police personnel in the State is entitled to. It further clarified that the Home Guards shall be entitled to the periodical rise which may be available to the police personnel of the State and the Duty Allowance to be paid to the Home Guards should be periodically increased taking into consideration the minimum of the pay to which the Police personnel of the State are entitled considering periodical increase from time to time. (Para 9, 10) Prakash Kumar Jena v. State of Odisha, 2023 LiveLaw (SC) 213 : (2023) 5 SCR 490 : 2023 INSC 254

Pension - The right to pensionary benefit is a constitutional right and as such cannot be taken away without proper justification - the grant of pensionary benefits is not a bounty, but a right of the employee, and as such cannot be denied without proper justification. (Para 11 & 12) R. Sundaram v. Tamilnadu State Level Scrutiny Committee, 2023 LiveLaw (SC) 207 : 2023 INSC 249 : (2023) 2 SCR 1037

Government resolutions cannot override statutory rules - In service jurisprudence, the service rules are liable to prevail - There can be Government resolutions being in consonance with or expounding the rules, but not in conflict with the same. (Para 25) Ashok Ram Parhad v. State of Maharashtra, 2023 LiveLaw (SC) 196 : AIR 2023 SC 1591 : (2023) 2 SCR 900 : 2023 INSC 233

Compassionate Appointment - Principles summarized. (Para 7.2) State of West Bengal v. Debabrata Tiwari, 2023 LiveLaw (SC) 175 : AIR 2023 SC 1467 : (2023) 2 SCR 611 : 2023 INSC 202

Compassionate Appointment - Since compassionate appointment is not a vested right and the same is relative to the financial condition and hardship faced by the dependents of the deceased government employee as a consequence of his death, a claim for compassionate appointment may not be entertained after lapse of a considerable period of time since the death of the government employee. (Para 7.5) State of West Bengal v. Debabrata Tiwari, 2023 LiveLaw (SC) 175 : AIR 2023 SC 1467 : (2023) 2 SCR 611 : 2023 INSC 202

Compassionate Appointment - Delay on the part of the authorities of the State to decide claims for compassionate appointment would no doubt frustrate the very object of a scheme of compassionate appointment. Government officials are to act with a sense of utmost proactiveness and immediacy while deciding claims of compassionate appointment so as to ensure that the wholesome object of such a scheme is fulfilled. (Para 14) State of West Bengal v. Debabrata Tiwari, 2023 LiveLaw (SC) 175 : AIR 2023 SC 1467 : (2023) 2 SCR 611 : 2023 INSC 202

Compulsory retirement order can be set aside if it's found to be punitive & was passed to circumvent disciplinary proceedings. Captain Pramod Kumar Bajaj v. Union of India, 2023 LiveLaw (SC) 165 : (2023) 2 SCR 30 : 2023 INSC 204

Supreme Court sets aside order of CBDT passed to compulsorily retire a gazetted officer-any exercise of power that exceeds the parameters prescribed by law or is motivated on account of extraneous or irrelevant factors or is driven by malicious intent or is on the face of it, so patently arbitrary that it cannot withstand judicial scrutiny, must be struck down -In such a case, this Court is inclined to pierce the smoke screen and on doing so, we are of the firm view that the order of compulsory retirement in the given facts and circumstances of the case cannot be sustained. The said order is punitive in nature and was passed to short-circuit the disciplinary proceedings pending against the appellant and ensure his immediate removal. The impugned order passed by the respondents does not pass muster as it fails to satisfy the underlying test of serving the interest of the public. (Para 34) Captain Pramod Kumar Bajaj v. Union of India, 2023 LiveLaw (SC) 165 : (2023) 2 SCR 30 : 2023 INSC 204

Mere acquittal in a criminal case does not entitle an employee to reinstatement in service. Imtiyaz Ahmad Malla v. State of Jammu & Kashmir, 2023 LiveLaw (SC) 150 : AIR 2023 SC 1308 : 2023 INSC 179

Appointment order of petitioner as constable of police cancelled as it was found that the the petitioner was involved in a criminal case and was under arrest for four days and he consciously concealed the said information - Mere acquittal does not entitle an employee to the reinstatement in service - If a person is acquitted or discharged, it cannot obviously be inferred that he was falsely involved, or he had no criminal antecedents - Director General being the highest functionary in the police hierarchy, was the best judge to consider the suitability of the petitioner for induction into the police force. Imtiyaz Ahmad Malla v. State of Jammu & Kashmir, 2023 LiveLaw (SC) 150 : AIR 2023 SC 1308 : 2023 INSC 179

Communicating annual confidential report to employee without sufficient time to challenge it same as non-communication of report. R.K. Jibanlata Devi v. High Court of Manipur, 2023 LiveLaw (SC) 139 : AIR 2023 SC 1190 : 2023 INSC 164

Promotion in Services – Communicating grade awarded in Annual Confidential Report (ACR) – Uncommunicated ACR not to be considered for consideration of promotion – Whether ACR communicated with sufficient time to make representation against it be considered? – Held, ACR communicated one day before promotion committee was convened ought not to be considered since employee had 15 days’ time to make a representation against it – Further held, either the DPC could have been postponed or the ACR ought not to have been considered and the same ought to have been treated as uncommunicated ACR – Writ petition allowed. R.K. Jibanlata Devi v. High Court of Manipur, 2023 LiveLaw (SC) 139 : AIR 2023 SC 1190 : 2023 INSC 164

Reducing cut-off marks after publication of results only to provide employment to a particular category violates Article 14. Sureshkumar Lalitkumar Patel v. State of Gujarat, 2023 LiveLaw (SC) 137 : (2023) 2 SCR 543 : 2023 INSC 145

Selection Process - Reduction in cut-off marks to accommodate candidates whose seats were reserved due to horizontal reservation – Difference between qualification for making an application and eligibility criteria determined after examination is conducted – Present matter dealt with not the qualification for making an application, but the eligibility of candidates determined on the basis of cut-off marks – Held, eligibility determined after examination is conducted could not be disturbed. (Para 22) Sureshkumar Lalitkumar Patel v. State of Gujarat, 2023 LiveLaw (SC) 137 : (2023) 2 SCR 543 : 2023 INSC 145

Selection Process - Whether advertisement made pursuant to notification could be changed – No amendment duly introduced – Modification on the advice of state government – An advertisement made pursuant to a notification would bind the parties – Had all the trappings of a statutory prescription unless it became contrary to either a rule or an act – Held, any change could only be introduced by way of an amendment and nothing else. (Para 23) Sureshkumar Lalitkumar Patel v. State of Gujarat, 2023 LiveLaw (SC) 137 : (2023) 2 SCR 543 : 2023 INSC 145

Right of candidate to be considered in accordance with law – No vested right to advertised post Candidates had right to be considered for appointment to the post in accordance with law – Held, a law which enabled a candidate to get a post could not be changed to facilitate another group of persons, since the candidate acquired a vested right to be considered in accordance with law. (Para 24) Sureshkumar Lalitkumar Patel v. State of Gujarat, 2023 LiveLaw (SC) 137 : (2023) 2 SCR 543 : 2023 INSC 145

Power of state government and selection committee to reduce cut-off marks after publication of results – Held, advertisement did not confer unbridled power either on state government or on selection committee to modify the selection process by reducing the qualifying marks after the results had already been published – Appeal allowed. (Para 26) Sureshkumar Lalitkumar Patel v. State of Gujarat, 2023 LiveLaw (SC) 137 : (2023) 2 SCR 543 : 2023 INSC 145

Equal Pay for Equal Work - The doctrine “equal pay for equal work” is not an abstract doctrine and is capable of being enforced in a Court of Law, the equal pay must be for equal work of equal value. The equation of posts and determination of pay scales is the primary function of the Executive and not of the Judiciary. The Courts therefore should not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions. (Para 14) Union of India v. Indian Navy Civilian Design Officers Association, 2023 LiveLaw (SC) 129 : (2023) 2 SCR 529 : 2023 INSC 152

Equal Pay for Equal Work - It may be true that the nature of work involved in two posts may sometimes appear to be more or less similar, however, if the classification of posts and determination of pay scale have reasonable nexus with the objective or purpose sought to be achieved, namely, the efficiency in the administration, the Pay Commissions would be justified in recommending and the State would be justified in prescribing different pay scales for the seemingly similar posts. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues or frustration due to longer duration of promotional avenues is also an acceptable reason for pay differentiation. It is also a well-accepted position that there could be more than one grade in a particular service. The classification of posts and the determination of pay structure, thus falls within the exclusive domain of the Executive, and the Courts or Tribunals cannot sit in appeal over the wisdom of the Executive in prescribing certain pay structure and grade in a particular service. (Para 14) Union of India v. Indian Navy Civilian Design Officers Association, 2023 LiveLaw (SC) 129 : (2023) 2 SCR 529 : 2023 INSC 152

Different pay scale for seemingly similar posts are justifiable if there is a reasonable classification. Union of India v. Indian Navy Civilian Design Officers Association, 2023 LiveLaw (SC) 129 : (2023) 2 SCR 529 : 2023 INSC 152

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

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

Gratuity-Death- cum-retirement gratuity is the benevolent scheme - Supreme Court imposes Rs 50,000 cost on the State of UP for challenging gratuity granted to widow of a deceased employee. State of U.P. v. Priyanka, 2023 LiveLaw (SC) 95 : (2023) 3 SCC 619 : (2023) 1 SCR 385 : 2023 INSC 109

Regularisation can't be claimed if appointment was not by a competent authority & there's no sanctioned post. Vibhuti Shankar Pandey v. State of Madhya Pradesh, 2023 LiveLaw (SC) 91 : AIR 2023 SC 832 : (2023) 3 SCC 639 : 2023 INSC 105

Regularisation - Two conditions for regularisation of daily wage employees - Firstly, initial appointment must be done by the competent authority and Secondly, there must be a sanctioned post on which the daily rated employee must be working - No claim for regularization if these conditions are not met. Vibhuti Shankar Pandey v. State of Madhya Pradesh, 2023 LiveLaw (SC) 91 : AIR 2023 SC 832 : (2023) 3 SCC 639 : 2023 INSC 105

VRS employees cannot claim parity with others who retired upon achieving the age of superannuation - They cannot claim parity with those who worked continuously, discharged their functions, and thereafter superannuated. VRS employees chose to opt and leave the service of the corporation; they found the VRS offer beneficial to them. (Para 39) Maharashtra State Financial Corporation Ex-Employees Association v. State of Maharashtra, 2023 LiveLaw (SC) 81 : AIR 2023 SC 792 : 2023 INSC 96

Pay revision is a matters falling within the domain of executive policy making-What is within the domain of the court, is to examine the impact of such fixation and whether it results in discrimination. (Para 27) Maharashtra State Financial Corporation Ex-Employees Association v. State of Maharashtra, 2023 LiveLaw (SC) 81 : AIR 2023 SC 792 : 2023 INSC 96

Punishment imposed by disciplinary authority can be interfered with only if it is 'strikingly disproportionate'. Union of India v. Const. Sunil Kumar, 2023 LiveLaw (SC) 49 : AIR 2023 SC 554 : (2023) 1 SCR 961 : 2023 INSC 55

Rajasthan Non-governmental Educational Institutions Act - Prior approval of director of education required to remove employee. Gajanand Sharma v. Adarsh Siksha Parisad Samiti, 2023 LiveLaw (SC) 48 : AIR 2023 SC 539 : (2023) 1 SCR 949 : 2023 INSC 58

Service Law - Joining the service of a disciplined force like CISF after suppressing criminal cases is a grave misconduct - Removal from service justified. (Para 9, 13) Ex-Const / DVR Mukesh Kumar Raigar v. Union of India, 2023 LiveLaw (SC) 44 : AIR 2023 SC 482 : (2023) 1 SCR 779 : 2023 INSC 42

Service Law - Power of judicial review exercised by a Court or a Tribunal against the orders of a departmental enquiry committee is only limited to ensuring "that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court -When an inquiry is conducted on the charges of misconduct by a public servant, the Court or Tribunal would be concerned only to the extent of determining whether the inquiry was held by a competent officer or whether the rules of natural justice and statutory rules were complied with. (Para 10) Ex-Const / DVR Mukesh Kumar Raigar v. Union of India, 2023 LiveLaw (SC) 44 : AIR 2023 SC 482 : (2023) 1 SCR 779 : 2023 INSC 42

A person cannot be deemed to be in service when the first dismissal order is in force. State Bank of India v. Kamal Kishore Prasad, 2023 LiveLaw (SC) 42 : (2023) 3 SCC 203 : (2023) 1 SCR 893 : 2023 INSC 21

SBI Officers Service Rules - When the first dismissal order against a person in service is in force, irrespective of all pending litigations or his age of superannuation, he cannot be deemed to be continuing in service. State Bank of India v. Kamal Kishore Prasad, 2023 LiveLaw (SC) 42 : (2023) 3 SCC 203 : (2023) 1 SCR 893 : 2023 INSC 21

Difference in pay-scale based on academic qualifications is valid even if the nature of work is the same. Union of India v. Rajib Khan, 2023 LiveLaw (SC) 35 : AIR 2023 SC 448 : (2023) 1 SCR 1009 : 2023 INSC 41

Service Law - Educational qualification can be a ground for different pay scale even if the nature of duties are the same - Pay scale difference in the posts of Nursing Assistant and Staff Nurse in Border Security Force upheld - Nature of work may be more or less the same but the scale of pay may vary based on academic qualification or experience which justifies classification. (Paras 4.4, 5) Union of India v. Rajib Khan, 2023 LiveLaw (SC) 35 : AIR 2023 SC 448 : (2023) 1 SCR 1009 : 2023 INSC 41