Complete Supreme Court Yearly Digest Part-11

Acquittal in Criminal Case

Disciplinary Proceedings - Acquittal in Criminal Case - The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction - In a prosecution for an offence punishable under the criminal law, the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. (Para 13) State of Karnataka v. Umesh, 2022 LiveLaw (SC) 304 : (2022) 6 SCC 563

Disciplinary Proceedings - Effect of Acquittal - An acquittal in a criminal trial has no bearing or relevance on the disciplinary proceedings as the standard of proof in both the cases are different and the proceedings operate in different fields and with different objectives. (Para 10.4) Maharashtra State Road Transport Corporation v. Dilip Uttam Jayabhay, 2022 LiveLaw (SC) 3 : AIR 2022 SC 238 : (2022) 2 SCC 696

Service Law - Appeal against the High Court judgment which upheld the cancellation of appointment of the appellant on the premise of non­disclosure of criminal case being instituted against him in the year 1997, when he was a juvenile - Allowed - the appellant was a juvenile when a criminal case was registered against him and was also a juvenile when the order of discharge was passed - This was indisputedly a special circumstance indeed which was not taken into consideration by the authority while passing the order of cancellation of his appointment - The seriatim of facts cumulatively indicate that the nature of information which was not disclosed by the appellant, in any manner, could be considered to be a suppression of material information. Umesh Chandra Yadav v. Inspector General and Chief Security Commissioner, 2022 LiveLaw (SC) 300 : 2022 (4) SCALE 680

Ad hoc employee

Service Law - An ad hoc employee cannot be replaced by another ad hoc employee and he can be replaced only by another candidate who is regularly appointed by following a regular procedure prescribed. (Para 12) Manish Gupta v. Jan Bhagidari Samiti, 2022 LiveLaw (SC) 406 : 2022 (6) SCALE 780

Advertisement

Service Law - In the event of a conflict between a statement in an advertisement and service regulations, the latter shall prevail - an erroneous advertisement would not create a right in favour of applicants who act on such representation. (Para 20) Employees State Insurance Co. v. Union of India, 2022 LiveLaw (SC) 78 : AIR 2022 SC 1017

Age

Service Law - The prescription of a rule providing for a minimum age requirement or maximum age for entry into service is essentially a matter of policy - Determination of cut-offs lies in the realm of policy. (Para 25) High Court of Delhi v. Devina Sharma, 2022 LiveLaw (SC) 286 : (2022) 4 SCC 643

All India Service

Service Law - All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of their choice. (Para 24) S.K. Nausad Rahman v. Union of India, 2022 LiveLaw (SC) 266 : AIR 2022 SC 1494

Amendment

Service Law - An amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution. (Para 47) Punjab State Co. Agri. Bank Ltd. v. Registrar, 2022 LiveLaw (SC) 42 : AIR 2022 SC 1349 : (2022) 4 SCC 363

Appointment

Service Law - Appointment as Management Trainee (Technical), cannot be compared to the education and appointment of a medical doctor. (Para 12) Chief Executive Officer Bhilai Steel Plant Bhilai v. Mahesh Kumar Gonnade, 2022 LiveLaw (SC) 572 : AIR 2022 SC 3356

Service Law - Appointment to senior positions through limited departmental competitive examinations is one through promotion channel - In order to encourage meritorious candidates who may be comparatively junior in service, a window of opportunity is opened through limited departmental examination. Those who pass the examination are entitled to have an accelerated promotion. This process does not change the character of movement to the higher post and it continues to be a promotional channel. (Justice Lalit, Para 20) Akhilesh Prasad v. Jharkhand Public Service Commission, 2022 LiveLaw (SC) 434

Service Law - Appointments made in contravention of the statutory provisions are void ab initio. (Para 32) State of Odisha v. Sulekh Chandra Pradhan, 2022 LiveLaw (SC) 393 : AIR 2022 SC 2030 : (2022) 7 SCC 482

Service Law - There is difference between void and illegal appointments- Void appointments cannot be regularized. Satyajit Kumar v. State of Jharkhand, 2022 LiveLaw (SC) 651

Autonomous Bodies

Service Law - The employees of the autonomous bodies cannot claim, as a matter of right, the same service benefits on par with the Government employees. Merely because such autonomous bodies might have adopted the Government Service Rules and/or in the Governing Council there may be a representative of the Government and/or merely because such institution is funded by the State/Central Government, employees of such autonomous bodies cannot, as a matter of right, claim parity with the State/Central Government employees. This is more particularly, when the employees of such autonomous bodies are governed by their own Service Rules and service conditions. The State Government and the Autonomous Board/Body cannot be put on par. (Para 10.2) State of Maharashtra v. Bhagwan, 2022 LiveLaw (SC) 28 : AIR 2022 SC 345 : (2022) 4 SCC 193

Back-Door Entry

Service Law - LIC as a statutory corporation is bound by the mandate of Articles 14 and 16 of the Constitution. As a public employer, the recruitment process of the corporation must meet the constitutional standard of a fair and open process. Allowing for back-door entries into service is an anathema to public service. (Para 72) Ranbir Singh v. S.K. Roy, 2022 LiveLaw (SC) 417 : 2022 (7) SCALE 110

Caste Certificate

Service Law - Caste Certificate - When a person secures appointment on the basis of a false certificate, he cannot be permitted to retain the benefit of wrongful appointment. (Para 14) Chief Executive Officer Bhilai Steel Plant Bhilai v. Mahesh Kumar Gonnade, 2022 LiveLaw (SC) 572 : AIR 2022 SC 3356

Central Civil Service

Central Civil Service Rules - Rule 43 - Maternity Leave - Unless a purposive interpretation were to be adopted in the present case, the object and intent of the grant of maternity leave would simply be defeated. The grant of maternity leave under Rules of 1972 is intended to facilitate the continuance of women in the workplace. It is a harsh reality that but for such provisions, many women would be compelled by social circumstances to give up work on the birth of a child, if they are not granted leave and other facilitative measures. No employer can perceive child birth as detracting from the purpose of employment. Child birth has to be construed in the context of employment as a natural incident of life and hence, the provisions for maternity leave must be construed in that perspective. (Para 25) Deepika Singh v. Central Administrative Tribunal, 2022 LiveLaw (SC) 718 : AIR 2022 SC 4108

Central Civil Services (Fixation of Pay of Re­employed Pensioners) Order, 1986; Para 8 - On re­employment in the government service, an employee who was serving in the Indian Army/in the Armed Forces not entitled to his pay scales at par with his last drawn pay - The reference to the last drawn pay in the armed forces is only to ensure that the pay computed in the civil post in the manner envisaged in para 8 of CCS Order does not exceed the basic pay (including the deferred pay but excluding other emoluments) last drawn by the personnel in the armed forces. (Para 5-6) Union of India v. Anil Prasad, 2022 LiveLaw (SC) 513 : 2022 (9) SCALE 34

Service Law - Norms applicable to the recruitment and conditions of service of officers belonging to the civil services can be stipulated in: (i) A law enacted by the competent legislature; (ii) Rules made under the proviso to Article 309 of the Constitution; and (iii) Executive instructions issued under Article 73 of the Constitution, in the case of civil services under the Union and Article 162, in the case of civil services under the States. (Para 28) S.K. Nausad Rahman v. Union of India, 2022 LiveLaw (SC) 266 : AIR 2022 SC 1494

Compassionate Appointment

Service Law - Compassionate Appointments - The authorities must consider and decide applications for appointment on compassionate grounds as per the policy prevalent, at the earliest, but not beyond a period of six months from the date of submission of such completed applications. (Para 9) Malaya Nanda Sethy v. State of Orissa, 2022 LiveLaw (SC) 522 : AIR 2022 SC 2836

Service Law - Compassionate Appointments restricted to Class III/IV (group C/D) Posts - SC pulls up TN Govt over Group B Appointments. M. Kendra Devi v. Government of Tamil Nadu, 2022 LiveLaw (SC) 274 : 2022 (4) SCALE 607

Constitution of India, 1950; Article 16(2) - Compassionate Appointment Policy - Descent cannot be a ground for denying employment under the scheme of compassionate appointments - A policy for compassionate appointment, which has the force of law, must not discriminate on any of the grounds mentioned in Article 16(2), including that of descent by classifying children of the deceased employee as legitimate and illegitimate and recognizing only the right of legitimate descendant. (Para 9, 10) Mukesh Kumar v. Union of India, 2022 LiveLaw (SC) 205 : 2022 (4) SCALE 103

Compassionate Appointment - After a period of 24 years from the death of the deceased employee, the respondent shall not be entitled to the appointment on compassionate ground. If such an appointment is made now and/or after a period of 14/24 years, the same shall be against the object and purpose for which the appointment on compassionate ground is provided - The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased. [Para 9.1, 9.2] Fertilizers and Chemicals Travancore Ltd. v. Anusree K.B., 2022 LiveLaw (SC) 819 : AIR 2022 SC 4766

Compassionate Appointment - Appointment on compassionate grounds cannot be extended to the heirs of the employees on their superannuation and/or retirement. If such an appointment is permitted, in that case, outsiders shall never get an appointment and only the heirs of the employees on their superannuation and/or retirement shall get an appointment and those who are the outsiders shall never get an opportunity to get an appointment though they may be more meritorious and/or well educated and/or more qualified - Compassionate appointment shall always be treated as an exception to the normal method of recruitment. The appointment on compassionate grounds is provided upon the death of an employee in harness without any kind of security whatsoever. The appointment on compassionate grounds is not automatic and shall be subject to the strict scrutiny of various parameters including the financial position of the family, the economic dependence of the family upon the deceased employee and the avocation of the other members of the family. No one can claim to have a vested right for appointment on compassionate grounds. (Para 8) Ahmednagar Mahanagar Palika v. Ahmednagar Mahanagar Palika Kamgar Union, 2022 LiveLaw (SC) 739 : AIR 2022 SC 4101 : (2022) 10 SCC 172

Compassionate Appointment - Financial criteria for compassionate appointment given in a Compassionate Appointment Scheme cannot be ignored - Rules which provide for a financial criteria for appointment on Compassionate ground are valid and lawful rules which have to be construed strictly, as otherwise the quota reserved for compassionate appointment would be filled up excluding others who might be in greater and/or far more acute financial distress. (Para 20-22) Central Bank of India v. Nitin, 2022 LiveLaw (SC) 690 : AIR 2022 SC 3779 : (2022) 8 SCC 378

Compassionate Appointment - Married daughter can't be held to be dependent of mother for the purpose of compassionate appointment- The whole object of granting compassionate employment is, thus, to enable the family to tide over the sudden crisis. The object is not to give such family a post much less a post held by the deceased. (Para 7, 7.1) State of Maharashtra v. Madhuri Maruti Vidhate, 2022 LiveLaw (SC) 820 : AIR 2022 SC 5176

Compassionate Appointment - Qualification prevailing on the date of applying for compassionate appointment is to be considered and not the date on which the application for compassionate appointment is considered. (Para 6-7) Delhi Jal Board v. Nirmala Devi, 2022 LiveLaw (SC) 863 : AIR 2022 SC 5167

Compulsory Retirement

Constitution of India, 1950; Article 226 - Appeal against Karnataka High Court judgment which set aside the judgment of the Karnataka Administrative Tribunal directing the compulsory retirement of the respondent employee from service following a disciplinary enquiry on charges of bribery - Allowed - High Court exceeded its jurisdiction under Article 226 and trenched upon a domain which falls within the disciplinary jurisdiction of the employee - The acquittal of the respondent in the course of the criminal trial did not impinge upon the authority of the disciplinary authority or the finding of misconduct in the disciplinary proceeding. State of Karnataka v. Umesh, 2022 LiveLaw (SC) 304 : (2022) 6 SCC 563

Date of Birth

Service Law - There are several authorities in which this Court has deprecated the practice on the part of the employees at the fag end of their career to dispute the records pertaining to their dates of birth that would have the effect of extension of the length of their service. The very reasoning on which an employee is not permitted to raise age ­ correction plea at the fag end of his service to extend his tenure should also apply to the employer as well. (Para 21) Shankar Lal v. Hindustan Copper Ltd., 2022 LiveLaw (SC) 407 : (2022) 6 SCC 211

Death-cum-Retirement Gratuity

Service Rules (Kerala); Rule 3 and 3A- Death Cum Retirement Gratuity - The pendency of the appeal cannot disentitle the State from withholding the DCRG - Rule 3A cannot be read in isolation 25 nor the latter part of it struck down as done by the High Court. Rule 3, Note 2, Ruling 3, and Rule 3A have to be read in conjunction as they provide for the treatment of the DCRG in case of disciplinary or judicial proceedings pending at the stage of retirement. Even in the absence of these proceedings in certain eventualities the amounts can be recovered from the DCRG - Set aside Full Bench judgment of Kerala High Court in K. Chandran vs Local Self Government Department 2020 (5) KLT 669 (FB) (Para 37, 39) Local Self Government Department v. K. Chandran, 2022 LiveLaw (SC) 285

Deputation

Service Law - Deputation involves a tripartite consensual agreement between the lending employer, borrowing employer and the employee. Specific rights and obligations would bind the parties and govern their conduct. A transient business visit without any written agreement detailing terms of deputation will not qualify as a deputation unless the respondent were to lead cogent evidence to indicate that the appellant was seconded to work overseas on deputation. Sarita Singh v. Shree Infosoft, 2022 LiveLaw (SC) 67 : 2022 (2) SCALE 19

Direct Recruitment

Service Law - Direct Recruitment - The preparation of inter se merit list of the selected candidates is inevitable, even in the absence of an explicit provision in the rule or policy, the recruitment authority cannot place the candidates inter se in the select list under the rule of thumb or by adopting the methodology which is inconsistent with the spirit of Articles 14 and 16 of the Constitution. The inter se merit list of the selected candidates can be prepared as a combined effect of several factors like written test, objective test, viva­voce and/or other parameters as may have been prescribed keeping in view the special requirement of service. (Para 16) Manoj Parihar v. State of Jammu and Kashmir, 2022 LiveLaw (SC) 560

Disability

Rights of Persons with Disabilities Act, 2016 - A person appointed under quota for Persons With Disabilities was allowed to choose his place of posting as per a beneficial circular issued by the Government- Later, in the state seniority list, his seniority was downgraded for having opted for transfer - The State relied on a provision in the service rules as per which a person will choose seniority within a district on transfer as per his request - The Court held that provision cannot alter state wise seniority - Also, the Court held that the benefit given to disabled persons as per the circular cannot be rendered otiose by imposing conditions. Net Ram Yadav v. State of Rajasthan, 2022 LiveLaw (SC) 684

Disciplinary Proceedings

Disciplinary Proceedings - Bank employee was dismissed after conducting a disciplinary proceedings - Appellate authority dismissed his appeal - Industrial Tribunal held that the punishment awarded to the employee of dismissal is not commensurate with the charge levelled against him - In writ petition filed against Tribunal order, the High Court refused to interfere with the Order for the reason that the respondent employee by that time had retired on attaining the age of superannuation in 2007. Allowing appeal, the Supreme Court upheld the dismissal order and observed: Merely because the employee stood superannuated in the meanwhile, will not absolve him from the misconduct which he had committed in discharge of his duties and looking into the nature of misconduct which he had committed, he was not entitled for any indulgence. (Para 11) United Bank of India v. Bachan Prasad Lall, 2022 LiveLaw (SC) 164 : AIR 2022 SC 943 : (2022) 4 SCC 358

Disciplinary Proceedings - Criminal and departmental, are entirely different and merely because one has been acquitted in a criminal trial that itself will not result in the reinstatement in service when one has been found guilty in a departmental proceeding - When it is not an honourable acquittal, but an acquittal given due to a "benefit of doubt", there cannot be reinstatement. (Para 8-14) State of Rajasthan v. Phool Singh, 2022 LiveLaw (SC) 735 : AIR 2022 SC 4176

Disciplinary Proceedings - If the Court finds that furnishing of the enquiry report would have made a difference to the result, in such case it should set aside the order of punishment. Where the Court sets aside the order of punishment, the proper relief which should be granted is to direct reinstatement of the employee with liberty to the authority/management to proceed with the inquiry, by placing the employee under suspension and continuing the inquiry from the stage of furnishing him with the report. The question whether the employee would be entitled to back­wages and other benefits from the date of his dismissal to the date of his reinstatement if ultimately ordered, should invariably be left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome. (Para 7) State of Uttar Pradesh v. Prabhat Kumar, 2022 LiveLaw (SC) 736

Disciplinary Proceedings - Merely because one of the employees was inflicted with a lesser punishment cannot be a ground to hold the punishment imposed on another employee as disproportionate, if in case of another employee higher punishment is warranted and inflicted by the disciplinary authority after due application of mind. There cannot be any negative discrimination. The punishment/penalty to be imposed on a particular employee depends upon various factors, like the position of the employee in the department, role attributed to him and the nature of allegations against him. (Para 11) Anil Kumar Upadhyay v. Director General, SSB, 2022 LiveLaw (SC) 392 : AIR 2022 SC 2008

Disciplinary Proceedings - Once the Court set aside an order of punishment on the ground that the enquiry was not properly conducted, the Court should not preclude the employer from holding the inquiry in accordance with law. It must remit the case concerned to the disciplinary authority to conduct the enquiry from the point that it stood vitiated, and to conclude the same in accordance with law. (Para 6) State of Uttar Pradesh v. Prabhat Kumar, 2022 LiveLaw (SC) 736

Disciplinary Proceedings - The only requirement is that a delinquent officer must be given fair opportunity to represent his case and that there is no absolute right in his favour to be represented through the agent of his choice. (Para 8) Rajasthan Marudhara Gramin Bank (RMGB) v. Ramesh Chandra Meena, 2022 LiveLaw (SC) 6 : AIR 2022 SC 392 : (2022) 3 SCC 44

Disciplinary Proceedings - The standard of proof in departmental proceedings, being based on preponderance of probability, is somewhat lower than the standard of proof in criminal proceedings where the case has to be proved beyond reasonable doubt - The test of criminal proceedings ought not to be applied in departmental proceedings to call for handwriting experts to examine signatures. Indian Overseas Bank v. Om Prakash Lal, 2022 LiveLaw (SC) 66 : (2022) 3 SCC 803

Disciplinary Proceedings - There is no absolute right in favour of the delinquent officer’s to be represented in the departmental proceedings through the agent of his choice and the same can be restricted by the employer. (Para 7) Rajasthan Marudhara Gramin Bank (RMGB) v. Ramesh Chandra Meena, 2022 LiveLaw (SC) 6 : AIR 2022 SC 392 : (2022) 3 SCC 44

Service Law - Disciplinary Proceedings - Driving a vehicle under the influence of alcohol is not only a misconduct but it is an offence also. Nobody can be permitted to drive the vehicle under the influence of alcohol. Such a misconduct of driving a vehicle under the influence of alcohol and playing with the life of the others is a very serious misconduct. - Merely because there was no major loss and it was a minor accident cannot be a ground to show leniency. (Para 11, 10) Brijesh Chandra Dwivedi v. Sanya Sahayak, 2022 LiveLaw (SC) 81 : AIR 2022 SC 667 : (2022) 4 SCC 189

Service Law - Disciplinary Proceedings - Mere non-supply of the documents which may not have resulted any prejudice caused to the employee, the order passed by the disciplinary authority cannot be set aside. State of Punjab v. Nachhattar Singh, 2022 LiveLaw (SC) 901

Service Law - Disciplinary Proceedings - Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee. Union of India v. M. Duraisamy, 2022 LiveLaw (SC) 404 : AIR 2022 SC 2002 : (2022) 7 SCC 475

Service Law - Interference with disciplinary proceedings under Article 226 of the Constitution -The writ court, when disciplinary action is challenged, is primarily concerned with examination of the decision making process, which requires satisfaction that the competent authorities have held inquiry as per the prescribed procedure, and have duly applied their mind to the evidence and material placed on record, without extraneous matters being given undue consideration, and the relevant factors have been cogitated. The conclusions of fact, which are based upon evaluation and appreciation of evidence, when meticulously reached by the authorities, should not be interfered with merely because the court may have reached at a different conclusion. (Para 17) CISF v. Santosh Kumar Pandey, 2022 LiveLaw (SC) 1036

Dismissal

Service Law - Appeal against High Court judgment setting aside punishment of dismissal awarded by appellate authority and restoring lesser punishment awarded by disciplinary authority - Partly allowed - Punishment of dismissal imposed by the Appellate Authority was not grossly disproportionate to the quantum of the offence. Union of India v. Managobinda Samantaray, 2022 LiveLaw (SC) 244 : 2022 (4) SCALE 667

Equal pay for equal work

Service Law - “Equal pay for equal work” is not a fundamental right vested in any employee, though it is a constitutional goal to be achieved by the Government.” (Para 14) State of Madhya Pradesh v. R.D. Sharma, 2022 LiveLaw (SC) 97 : 2022 (2) SCALE 398

Service Law - The doctrine of equal pay for equal work could only be invoked when the employees were similarly circumstanced in every way. Mere similarity of designation or similarity or quantum of work was not determinative of equality in the matter of pay scales. The Court had to consider all the relevant factors such as the mode of recruitment, qualifications for the post, the nature of work, the value of work, responsibilities involved and various other factors. (Para 18) State of Madhya Pradesh v. Seema Sharma, 2022 LiveLaw (SC) 571

Entitlement Rules for Casualty Pensionary Awards, 1982

Entitlement Rules for Casualty Pensionary Awards, 1982; Rule 14(b) - the Rule is only attracted when a disease leads to an individual's discharge or death - such disease is ordinarily to be deemed to have arisen in service, if no note of it was made at the time of the individual's acceptance for military service, but not always - in any case, the presumption under Rule 14(b) of the Entitlement Rules is rebuttable - if medical opinion holds, for reasons to be stated, that the disease could not have been detected on medical examination prior to acceptance for service, the disease will not be deemed to have arisen during service. [Para 20] Union of India v. Ex Sep. R. Munusamy, 2022 LiveLaw (SC) 619 : AIR 2022 SC 3449

Entitlement Rules for Casualty Pensionary Awards, 1982; Rule 14(c) - If a disease were accepted as having arisen in service, it must also be established that the conditions of military service determined or contributed to the onset of the disease and that the conditions were due to the circumstances of duty in military service - reason for disability or ailment - reliance would necessarily have to be placed on expert medical opinion based on an in depth study of the cause and nature of an ailment/disability including the symptoms thereof, the conditions of service to which the soldier was exposed and the connection between the cause/aggravation of the ailment/disability and the conditions and/or requirements of service. [Para 23, 25] Union of India v. Ex Sep. R. Munusamy, 2022 LiveLaw (SC) 619 : AIR 2022 SC 3449

Excess Payment

Service Law - If the excess amount was not paid on account of any misrepresentation or fraud of the employee or if such excess payment was made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order which is subsequently found to be erroneous, such excess payment of emoluments or allowances are not recoverable. This relief against the recovery is granted not because of any right of the employees but in equity, exercising judicial discretion to provide relief to the employees from the hardship that will be caused if the recovery is ordered - if in a given case, it is proved that an employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, the courts may on the facts and circumstances of any particular case order for recovery of amount paid in excess. Thomas Daniel v. State of Kerala, 2022 LiveLaw (SC) 438 : 2022 (7) SCALE 179

Grace Mark Policy

CBDT Departmental Examination - Grace mark policy - The benefit of the grace marks was not to allow the reserved category candidate to switch over to general category - Only in a case where any candidate belonging to any category is marginally failing to pass the examination, he is/was to be allowed the grace marks so as to allow him to obtain the minimum passing marks required and that too by allowing upto five grace marks - It was never meant for a person, who has passed in his own category. Union of India v. Mukesh Kumar Meena, 2022 LiveLaw (SC) 420 : AIR 2022 SC 2055

Judicial Service

Constitution of India, 1950; Article 233, 235 - The High Courts are well within their domain in prescribing a requirement which ensures that candidates with sufficient maturity enter the fold of the higher judiciary. The requirement that a candidate should be at least 35 years of age is intended to sub-serve this - The Constitution does not preclude the exercise of the rule making power by the High Courts to regulate the conditions of service or appointment - Age is not extraneous to the acquisition of maturity and experience, especially in judicial institutions which handle real problems and confront challenges to liberty and justice. (Para 26) High Court of Delhi v. Devina Sharma, 2022 LiveLaw (SC) 286 : (2022) 4 SCC 643

Constitution of India, 1950; Article 311(2) - Judicial Service - When the Government had, on enquiry, come to the conclusion, rightly or wrongly, that the appellant was unsuitable for the post he held on probation, this was clearly by way of punishment and, hence, the appellant would be entitled to the protection of Article 311(2) of the Constitution. (Para 50) Abhay Jain v. High Court of Judicature for Rajasthan, 2022 LiveLaw (SC) 284 : 2022 (4) SCALE 784

Judges Appointment - Collegium reiterations are binding - Supreme Court asks Centre to explain by reiterated names are sent back to the collegium- 10 names reiterated by the Supreme Court collegium sent back by the Central Government- SC asks Attorney General as to how under the Scheme of law prevalent, are reiterated names sent back - Refers to para 486, clause 5 of the second Judges case reported in 1993 (4) SCC 441 - sending back a second time reiterated names would be in breach of this direction. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 1013

Judges Appointment - Delay in finalizing the appointments discouraging eminent lawyers from joining the bench-There has been reluctance on the part of the successful lawyers to accept the honour and what we have stated in our last order is out of the experience of not being able to persuade such eminent people to join the Bench with one factor largely weighing in with them apart from any other issue, i.e. the long prolonged process of appointment and putting their career on hold. Thus on one hand, they are making a monetary sacrifice to come on to the Bench in a larger cause of justice but in that process they do not want their life to be dragged into an uncertainty. This has also resulted in at times, persons withdrawing their consent who are recommended to be elevated. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 1013

Judges Appointment - Delays in appointment will discourage competent lawyers in opting for judgeship - With the expanding opportunities to prominent lawyers, it is as it is a challenge to persuade persons of eminence to be invited to the Bench. On top of that if the process takes ages, there is a further discouragement to them to accept the invitation and this is undoubtedly weighing with the members of the Bar in accepting the invitation to adorn the Bench-unless the Bench is adorned by competent lawyers very concept of Rule of Law and Justice suffers. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 949

Judges Appointment - Memorandum of Procedure is final - The final view of the collegium was expressed in the MoP which was received by the Govt. on 13.03.2017- The undisputed legal position that the MoP is final. That this does not mean that if the Government suggests some changes or improvements in the MoP, that cannot be looked into but till that happens, the MoP as existing would apply. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 1013

Judges Appointment - Supreme Court disapproves Centre splitting up collegium recommendation - When the recommendations are cleared by the Supreme Court, the seniority set out therein must be followed. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 1013

Judicial Appointment - Supreme Court issues notice to the Secretary (Justice) and the current Additional Secretary (Administration and Appointment) over delays in clearing collegium reiterations. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 949

Judicial Appointments - Once the Government has expressed its reservation and that has been dealt with by the Collegium, post second reiteration, only the appointment has to take place. Thus, keeping the names pending is something not acceptable. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 949

Judicial Appointments - Selection to the post of Civil Judge (Junior Division) in Bihar - Decision of Bihar Public Service Commission to reject the applications of 8 candidates for not submitting originals of the certificates at the time of interview set aside - The rejection of the candidates was improper, unjustified and not warranted - 8 appellants who were duly qualified and duly selected have been deprived of their appointment as Judicial Officers. Aarav Jain v. Bihar Public Service Commission, 2022 LiveLaw (SC) 521 : AIR 2022 SC 2525

Judicial Appointments - Supreme Court criticises Centre keeping the recommendations pending - We find the method of keeping the names on hold whether duly recommended or reiterated is becoming some sort of a device to compel these persons to withdraw their names as has happened. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 949

Judicial Appointments - Supreme Court makes critical remarks against the Union Government over delay in clearing names reiterated by the Collegium. Advocates Association Bengaluru v. Barun Mitra, 2022 LiveLaw (SC) 949

Judicial Service - Appeal against Bombay HC judgment which refused to interfere with cancellation of appointment of appellant judicial officer who could not join before prescribed date due to nationwide lockdown imposed in view of covid-19 pandemic - Allowed - It is not a case where there is a complete dearth of any explanation by the candidate - There was considerable confusion also about what a person could do and what a person could not do during the time of the lockdown. It was an unprecedented situation which affected the nation - Impugned notification quashed and appointment restored - The appellant will not be entitled to claim seniority / backwages. Rakesh Kumar v. State of Bihar, 2022 LiveLaw (SC) 250

Judicial Service - Appeal against High Court judgment which upheld discharge of a judicial officer - Allowed - Charges filed against the appellant are vague in nature and that absolutely no details have been provided regarding the said allegation of passing the bail order for extraneous considerations/ ulterior motive - Even if appellant's act is considered to be negligent, it cannot be treated as "misconduct" - The appellant be reinstated with all consequential benefits including continuity of service and seniority, but will be entitled to be paid only 50% backwages, which may be paid within a period of four months. Abhay Jain v. High Court of Judicature for Rajasthan, 2022 LiveLaw (SC) 284 : 2022 (4) SCALE 784

Judicial Service - Appellant had applied to the post of Additional District and Sessions Judge (in Bihar) - In the meantime, he also applied for post of Civil Judge (Junior Division) in State of Uttar Pradesh - After being successful in the selection process (UP), he was appointed on 16th January 2017 as a Civil Judge (Junior Division) in UP - After this, the selection process for recruitment in the Bihar Superior Judicial Services proceeded further. After obtaining the requisite permission from the Allahabad HC, he participated in the selection process conducted by the Patna High Court for the post of Additional District & Sessions Judge. After successfully clearing the selection process, he obtained permission from the Allahabad HC for resigning from the Uttar Pradesh Judicial Services, so as to join his service as Additional District and Sessions Judge in the State of Bihar. Thus he joined the Bihar Superior Judicial Service with effect from 21st August 2018 - Later the Patna HC terminated his service citing the decision in Dheeraj Mor v. High Court of Delhi (2020) 7 SCC 401 - His writ petition challenging this termination dismissed by Patna HC - Allowing appeal, the Supreme Court observed: He was neither in services of the Bihar Subordinate Judicial Services Cadre on the date on which he applied - Nor was he in the services of the Bihar Subordinate Judicial Officer Cadre on the date on which he was selected- He had also sought permission from Allahabad HC in this regard - directed reinstation. Sunil Kumar Verma v. State of Bihar, 2022 LiveLaw (SC) 775

Judicial Service - Delhi Higher Judicial Service - In order to obviate any further litigation and uncertainty, we permit the High Court as a one-time measure to allow those candidates who were within the age cut-off of 45 years during the recruitment years 2020 and 2021 to participate in the ensuing DHJS examinations. (Para 29) High Court of Delhi v. Devina Sharma, 2022 LiveLaw (SC) 286 : (2022) 4 SCC 643

Judicial Service - Delhi Higher Judicial Service - The deletion of the minimum age requirement of 35 years in 2019 may have been guided by the need to attract a larger pool of applicants to DHJS. But the reinstatement of a minimum age requirement of 35 years is a matter of policy. This conforms to the recommendation of the Shetty Commission. (Para 27) High Court of Delhi v. Devina Sharma, 2022 LiveLaw (SC) 286 : (2022) 4 SCC 643

Judicial Service - Discharge of Judicial Officer - Negligence cannot be treated to be misconduct - Relief-oriented judicial approaches cannot by themselves be grounds to cast aspersions on the honesty and integrity of an officer- Every judicial officer is likely to commit mistake of some kind or the other in passing orders in the initial stage of his service, which a mature judicial officer would not do. However, if the orders are passed without there being any corrupt motive, the same should be over-looked by the High Court and proper guidance should be provided to him. (Para 69, 54) Abhay Jain v. High Court of Judicature for Rajasthan, 2022 LiveLaw (SC) 284 : 2022 (4) SCALE 784

Judicial Service - Inter-se seniority for Munsiffs appointed by way of direct recruitment on the recommendation of the State Public Service Commission is to be determined on the basis of their inter-se merit at the time of selection and not roster points. Manoj Parihar v. State of Jammu and Kashmir, 2022 LiveLaw (SC) 560

Judicial Service - The writ petitioner alleged that hostile transfer orders were passed as she did not act as per the demands of the supervising High Court judge. She complained that was faced with transfer from a Category 'A' city to Category 'C' city and also a Naxal affected area, in violation of the extant transfer policy of the High Court. Since the transfer would have prevented her from being with her daughter who was then appearing for the board exams, she was faced with no option but to resign. Later, she approached the Supreme Court asserting her right to be reinstated. The Supreme Court Held: Though, it may not be possible to observe that the petitioner was forced to resign, however, the circumstances would clearly reveal that they were such, that out of frustration, the petitioner was left with no other alternative. The petitioner’s resignation from the post of Additional District & Sessions Judge, Gwalior dated 15th July 2014, cannot be construed to be voluntary and as such, the order dated 17th July 2014, passed by the respondent No. 2, thereby accepting the resignation of the petitioner, is quashed and set aside; and the respondents are directed to re­instate the petitioner forthwith as an Additional District & Sessions Judge. Though the petitioner would not be entitled to back wages, she would be entitled for continuity in service with all consequential benefits with effect from 15th July 2014. Ms. X v. Registrar General, 2022 LiveLaw (SC) 150 : 2022 (3) SCALE 99

Judicial Service - When the Government had, on enquiry, come to the conclusion, rightly or wrongly, that the appellant was unsuitable for the post he held on probation, this was clearly by way of punishment and, hence, the appellant would be entitled to the protection of Article 311(2) of the Constitution. (Para 50) Abhay Jain v. High Court of Judicature for Rajasthan, 2022 LiveLaw (SC) 284 : 2022 (4) SCALE 784

Judicial Service (Delhi) - Order dated 21st March 2002 modified - 25% by promotion strictly on the basis of merit through LDCE of Civil Judges having 7 years qualifying service [(5 years as Civil Judge (Junior Division) and 2 years as Civil Judge (Senior Division)] or 10 years qualifying service as Civil Judge (Junior Division) - Only 10% of the cadre strength of District Judges be filled up by Limited Departmental competitive Examination with those candidates who have qualified service of 7 years [(5 years as Civil Judge (Junior Division) and 2 years as Civil Judge (Senior Division) or 10 years qualifying service as Civil Judge(Junior Division). (Para 17) All India Judges Association v. Union of India, 2022 LiveLaw (SC) 385 : AIR 2022 SC 1944 : (2022) 7 SCC 494

Judicial Service Examination - Particularly in such cases where there is a multiple choice question paper, it is always advisable that for such question papers, there shall always be an OMR sheet which may be provided to the candidates so that the question paper can be retained by each of the participants and after the examination is held, a provisional answer key is to be uploaded inviting objections from the candidates who had participated in the selection process, to be furnished within a reasonable time and after collating such objections, the same be placed before a subject expert committee to be constituted by the recruiting/competent authority and after the report is submitted by the subject expert committee, the same be examined by the recruiting authority and thereafter the final answer key is to be uploaded. We make it clear that no presumption is to be drawn that the result has to be declared, but at least the candidates may be provided the final answer keys to enable them to make their own assessment. (Para 26) Harkirat Singh Ghuman v. Punjab & Haryana High Court, 2022 LiveLaw (SC) 720 : AIR 2022 SC 4060

Judicial Service Examination - Punjab/Haryana Superior Judicial Service Examination, 2019 - High Court dismissed writ petition challenging the examination process - Allowing the appeal, the Supreme Court directed : Valuate the marks obtained of question nos. 1,2,3 and 5 of Paper V (Criminal Law) (out of total 160 marks) and after undertaking the process, a fresh result of the written examination be declared of the candidates in reference to Punjab/Haryana Superior Judicial Service Examination, 2019 and those who qualify and fall in the zone of three times the number of vacancies may be called for viva­voce and result of the selection process, thereafter be finally declared in accordance with the scheme of Rules, 2007. Harkirat Singh Ghuman v. Punjab & Haryana High Court, 2022 LiveLaw (SC) 720 : AIR 2022 SC 4060

Judicial Service Examination - Where the written examination is followed with viva­voce, declaration of result of the written examination before conducting viva­voce may not be valid and justified but in cases where determination of merit is based on written examination, it must be declared and made available to candidates without any loss of time and this Court can take a judicial notice of the fact that in such cases where the written examination is followed with interview / viva­voce and the members in the interview board are made aware of the marks secured by the candidates in the written examination that may likely to form bias affecting the impartial evaluation of the candidates in viva­voce and in our considered view, it may always be avoided. (Para 28-29) Harkirat Singh Ghuman v. Punjab & Haryana High Court, 2022 LiveLaw (SC) 720 : AIR 2022 SC 4060

Service Law - Judicial Service - Munisffs - The roster points do not determine the seniority of the appointees who gain simultaneous appointments; that is to say, those who are appointed collectively on the same date or are deemed to be appointed on the same date, irrespective when they joined their posts - The roster system is only for the purpose of ensuring that the quantum of reservation is reflected in the recruitment process. It has nothing to do with the inter­ se seniority among those recruited. (Para 29) Manoj Parihar v. State of Jammu and Kashmir, 2022 LiveLaw (SC) 560

Leave Encashment

Service Law - Leave encashment is part of salary. (Para 18) Jagdish Prasad Saini v. State of Rajasthan, 2022 LiveLaw (SC) 801 : AIR 2022 SC 5478

MACP Scheme

Service Law - MACP Scheme - Any revision of pay-structure or revision in other terms and conditions, of Central Government personnel cannot and do not automatically apply to the DDA; it has to consider the new or fresh scheme formulated by the Central Government, and adopt it, if necessary, after appropriate adaptation, to suit its needs. Therefore, the Central Government’s MACP scheme did not apply to it automatically. (Para 29) Vice Chairman Delhi Development Authority v. Narender Kumar, 2022 LiveLaw (SC) 261 : 2022 (4) SCALE 512

Service Law - MACP Scheme - That, some employees could have benefitted more under the ACP benefits, if the MACP scheme had not been introduced from an earlier date, is no ground to hold so and compel an executive agency to grant the claimed benefits. (Para 37) Vice Chairman Delhi Development Authority v. Narender Kumar, 2022 LiveLaw (SC) 261 : 2022 (4) SCALE 512

Service Law - Modified Assured Career Progression - MACP Scheme envisages merely placement in the immediate next higher grade pay in the hierarchy of the recommended revised pay bands and grade pay as given in Section 1, Part A of the First Schedule of the CCS (Revised Pay) Rules, 2008 and has nothing to do with the next promotional post. (Para 4.1) Directorate of Enforcement v. Sudheesh Kumar, 2022 LiveLaw (SC) 99 : AIR 2022 SC 768 : (2022) 3 SCC 649

Service Law - Modified Assured Career Progression (MACP) Scheme - 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 -fulfilment of pre-promotional norms for grant of financial upgradation would not be insisted for Central Armed Force personnel who, for administrative or other reasons, could not be sent or undergo the pre-promotional course. (Para 12) Union of India v. Ex. HC/GD Virender Singh, 2022 LiveLaw (SC) 699 : AIR 2022 SC 3942

One Rank One Pension

One Rank One Pension - No constitutional infirmity in the OROP principle as defined by the communication dated 7 November 2015 - The definition of OROP is uniformly applicable to all the pensioners irrespective of the date of retirement - The cut-off date is used only for the purpose of determining the base salary for the calculation of pension- Varying pension payable to officers of the same rank retiring before and after 1 July 2014 either due to MACP or the different base salary used for the calculation of pension cannot be held arbitrary. (Para 49) Indian Ex Servicemen Movement v. Union of India, 2022 LiveLaw (SC) 289 : (2022) 7 SCC 323

Pay Scale

Service Law - Differential pay scale along with a process of selection qua suitability fixing eligibility criteria are the factors to determine whether a particular post is the same as the other or a promotional one. Union of India v. Manpreet Singh Poonam, 2022 LiveLaw (SC) 254 : (2022) 6 SCC 105

Service Law - The equation of post and determination of pay scales is the primary function of the executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions. This is because such job evaluation exercise may include various factors including the relevant data and scales for evaluating performances of different groups of employees, and such evaluation would be both difficult and time consuming, apart from carrying financial implications. Therefore, it has always been held to be more prudent to leave such task of equation of post and determination of pay scales to be best left to an expert body. Unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post, and that the court’s interference was absolutely necessary to undo the injustice, the courts would not interfere with such complex issues. (Para 14) State of Madhya Pradesh v. R.D. Sharma, 2022 LiveLaw (SC) 97 : 2022 (2) SCALE 398

Service Law - The fixation of scales of pay is a matter of policy, with which the Courts can only interfere in exceptional cases where there is discrimination between two sets of employees appointed by the same authority, in the same manner, where the eligibility criteria is the same and the duties are identical in every aspect. (Para 23) State of Madhya Pradesh v. Seema Sharma, 2022 LiveLaw (SC) 571

Private School Employees

Service Law - Appeal against Bombay HC judgment which upheld School Tribunal under the Maharashtra Private School Employees (Conditions of Service) Act, 1977, setting aside the Enquiry Committee's order of dismissal on the sole ground that the President of the Management was not the President of the Enquiry Committee - Allowed - "Doctrine of Necessity" applied to sustain the findings of a Disciplinary Enquiry Committee against a School Principal, after noting that the President of the Committee had to be replaced due to ill health. Jai Bhavani Shikshan Prasarak Mandal v. Ramesh, 2022 LiveLaw (SC) 327 : 2022 (5) SCALE 418

Parity of Pay Scale

Service Law - Parity of Pay Scale - Well settled that there can be no equality to a wrong and/or illegality. Just because a librarian may have been erroneously granted the UGC pay scale, that would not entitle others to claim the UGC pay scale, if not applicable under the Rules. (Para 20) State of Madhya Pradesh v. Seema Sharma, 2022 LiveLaw (SC) 571

Pension

Service Law - Once the appointment is held to be illegal and void ab initio the services rendered cannot be considered / counted for the purpose of pension. Dr. Rajasree M.S. v. Professor (Dr) Sreejith PS,, 2022 LiveLaw (SC) 1023

Service Law - Pension - Pension is a continuous cause of action - No justification in denying the arrears of pension on ground of delay. M.L. Patil v. State of Goa, 2022 LiveLaw (SC) 537 : AIR 2022 SC 2878

Service Law - Pension - principles governing pensions and cut-off dates summarized - All pensioners who hold the same rank may not for all purposes form a homogenous class - The benefit of a new element in a pensionary scheme can be prospectively applied. However, the scheme cannot bifurcate a homogenous group based on a cut-off date- Same principle of computation of pensions must be applied uniformly to a homogenous class - It is not a legal mandate that pensioners who held the same rank must be given the same amount of pension. The varying benefits that may be applicable to certain personnel which would also impact the pension payable need not be equalized with the rest of the personnel. (Para 48) Indian Ex Servicemen Movement v. Union of India, 2022 LiveLaw (SC) 289 : (2022) 7 SCC 323

Pension - Grant of pensionary benefits is not a one-time payment. Grant of pensionary benefits is a recurring monthly expenditure and there is a continuous liability in future towards the pensionary benefits. (Para 10.7) State of Maharashtra v. Bhagwan, 2022 LiveLaw (SC) 28 : AIR 2022 SC 345 : (2022) 4 SCC 193

Pension - High Court directed to pay pensionary benefits to an ad -hoc employee who has retired after rendering more than 30 years service - SLP filed by the State Dismissed - The State cannot be permitted to take the benefit of its own wrong. To take the Services continuously for 30 years and thereafter to contend that an employee who has rendered 30 years continuous service shall not be eligible for pension is nothing but unreasonable. As a welfare State, the State as such ought not to have taken such a stand. State of Gujarat v. Talsibhai Dhanjibhai Patel, 2022 LiveLaw (SC) 187

Pension - Pension, is a lifelong benefit. Denial of pension is a continuing wrong. This Court cannot also be oblivious to the difficulties of a retired employee in approaching the Court, which could include financial constraints - Financial rules framed by the Government such as Pension Rules are capable of more interpretations than one, the Courts should lean towards that interpretation which goes in favour of the employee. (Para 27-28) State of Rajasthan v. O.P. Gupta, 2022 LiveLaw (SC) 785 : AIR 2022 SC 4538

Pension Regulations for the Army, 1961; Regulation 173 - Entitlement Rules for Casualty Pensionary Awards, 1982; Rule 12 - Unless the disability is attributable to or aggravated by military service and is more than 20%, the entitlement to disability pension does not arise - There has to be a reasonable causal connection between the injuries resulting in disability and the military service. (Para 8-10) Union of India v. Ex Naik Ram Singh, 2022 LiveLaw (SC) 611 : AIR 2022 SC 3383

Service Law - Tripura State Civil Services (Revised Pension) Rules, 2009; Rule 3(3) - A conscious policy decision was taken by the State Government to grant the benefit of revision of pension notionally from 01.01.2006 or from the date of superannuation till 31.12.2008 and to pay/grant the benefit of revision of pension actually from 01.01.2009, which was based on their financial crunch/financial constraint - The cut ­off date has been fixed as 01.01.2009 on a very valid ground i.e., financial constraint - High Court manifestly erred in striking down the Rule 3(3). State of Tripura v. Anjana Bhattacharjee, 2022 LiveLaw (SC) 706 : AIR 2022 SC 4019

Policy Decision

Service Law - Policies which stipulate that the posting of spouses should be preferably, and to the extent practicable, at the same station are subject to the requirement of the administration. (Para 26) S.K. Nausad Rahman v. Union of India, 2022 LiveLaw (SC) 266 : AIR 2022 SC 1494

Service Law - Policy Decision - The Court should refrain from interfering with the policy decision, which might have a cascading effect and having financial implications. Whether to grant certain benefits to the employees or not should be left to the expert body and undertakings and the Court cannot interfere lightly. Granting of certain benefits may result in a cascading effect having adverse financial consequences. (Para 10.4) State of Maharashtra v. Bhagwan, 2022 LiveLaw (SC) 28 : AIR 2022 SC 345 : (2022) 4 SCC 193

Premature Retirement

Service Law - Premature Retirement - The entire service record is to be taken into consideration which would include the ACRs of the period prior to the promotion. The order of premature retirement is required to be passed on the basis of entire service records, though the recent reports would carry their own weight. (Para 15) Central Industrial Security Force v. HC (GD) Om Prakas, 2022 LiveLaw (SC) 128 : (2022) 5 SCC 100

Promotion

Service Law - When an employee refuses the offered promotion, difficulties in manning the higher position might arise which give rise to administrative difficulties as the concerned employee very often refuse promotion in order to continue in his/her own place of posting. (Para 17) Union of India v. Manju Arora, 2022 LiveLaw (SC) 1 : (2022) 2 SCC 151

Service Law - Promotion - A mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process - There can never be a parity between two separate sets of rules - A right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules. (Para 18) Union of India v. Manpreet Singh Poonam, 2022 LiveLaw (SC) 254 : (2022) 6 SCC 105

Service Law - Promotion - Seniority cum merit - A marred service record, though not an insurmountable bar, must carry some consequences, and it could be a comparative disadvantage in promotion for a selection post. The employer's preference for a person with a clean service record can be well appreciated - Despite the difficulty in encapsulating the parameters for 'merit', a significant marker can be found in the unblemished record of the employee. (Para 25) Rama Negi v. Union of India, 2022 LiveLaw (SC) 236 : (2022) 5 SCC 150

Service Law - Promotion - Seniority cum merit - Appeal against High Court judgment that set aside resolution of Cantonment Board in favour of appellant in the matter of promotion to a selection post - Allowed - The unblemished service record of the appellant vis-à-vis the pending disciplinary proceedings against the respondent (eventually resulting in penalty), were taken into account - The higher pay in the same grade as per the applicable O.M., is a reliable indicator for determining inter-se seniority - All these circumstances in our opinion, weigh in favour of the appellant Rama Negi. Rama Negi v. Union of India, 2022 LiveLaw (SC) 236 : (2022) 5 SCC 150

Service Law - Promotion - Seniority cum merit - Parameters for determining promotion discussed - The totality of the service of the employee has to be considered for promotion on the basis of seniority-cum-merit. (Para 19-20) Rama Negi v. Union of India, 2022 LiveLaw (SC) 236 : (2022) 5 SCC 150

Service Law - Promotion based on merit­ cum­ seniority - Seniority by itself is not the only qualification for promotion to a selection post - The comparative merit has to be evaluated in which seniority will be one of the factors only - Even a junior most person may steal a march over his seniors and jump the queue for accelerated promotion. (Para 16) Manoj Parihar v. State of Jammu and Kashmir, 2022 LiveLaw (SC) 560

Service Law - Promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen. Union of India v. Manpreet Singh Poonam, 2022 LiveLaw (SC) 254 : (2022) 6 SCC 105

Service Law - The employees who have refused the offer of regular promotion are disentitled to the financial upgradation benefits envisaged under the O.M. dated 9.8.1999. (Para 18) Scottish doctrine of “Approbate and Reprobate -” The English equivalent of the doctrine was explained in Lissenden v. CAV Bosch Ltd. wherein Lord Atkin observed at page 429, “…………In cases where the doctrine does apply the person concerned has the choice of two rights, either of which he is at liberty to adopt, but not both. Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with knowledge adopts the one he cannot afterwards assert the other………….” Union of India v. Manju Arora, 2022 LiveLaw (SC) 1 : (2022) 2 SCC 151

Service Law - Services rendered by an employee on work charge basis cannot be considered for the grant of benefit of first time bound promotion if the employee is absorbed in service on a different pay-scale. (Para 3.1, 4) State of Maharashtra v Madhukar Antu Patil, 2022 LiveLaw (SC) 308 : (2022) 5 SCC 322

Service Law - Revenue Consolidation Service Rules, 1992 (Uttar Pradesh) - Inter se seniority of direct recruits and promotees in a particular service has to be determined as per the service rules - When the 1992 Rules specifically emphasized that, where in any year of recruitment, appointments were to be made both by direct recruitment and by promotion, regular appointments could not have been made unless selections were made from both the sources and a combined list was to be prepared in accordance with Rule 18 of the 1992 Rules - The seniority list which provided a higher seniority to the direct recruits is not sustainable in law. (Para 25) Amit Singh v. Ravindra Nath Pandey, 2022 LiveLaw (SC) 953

Constitution of India, 1950; Article 16 - Reservation in Promotion - No yardstick can be laid down by the Court for determining the adequacy of representation of SCs and STs in promotional posts for the purpose of providing reservation. (Para 16) Jarnail Singh v. Lachhmi Narain Gupta, 2022 LiveLaw (SC) 94 : 2022 (2) SCALE 494

Constitution of India, 1950; Article 16 - Reservation in Promotion - The judgment of M. Nagaraj & Ors. v. Union of India (2006) 8 SCC 212 should be declared to have prospective effect- Making the principles laid down in M. Nagaraj (supra) effective from the year 1995 would be detrimental to the interests of a number of civil servants and would have an effect of unsettling the seniority of individuals over a long period of time. (Para 42) Jarnail Singh v. Lachhmi Narain Gupta, 2022 LiveLaw (SC) 94 : 2022 (2) SCALE 494

Constitution of India, 1950; Article 16 - Reservation in Promotion - Before providing for reservation in promotions to a cadre, the State is obligated to collect quantifiable data regarding inadequacy of representation of SCs and STs. Collection of information regarding inadequacy of representation of SCs and STs cannot be with reference to the entire service or ‘class’/‘group’ but it should be relatable to the grade/category of posts to which promotion is sought. Cadre, which should be the unit for the purpose of collection of quantifiable data in relation to the promotional post(s), would be meaningless if data pertaining to representation of SCs and STs is with reference to the entire service. (Para 29) Jarnail Singh v. Lachhmi Narain Gupta, 2022 LiveLaw (SC) 94 : 2022 (2) SCALE 494

Constitution of India, 1950; Article 16 - Reservation in Promotion - It is for the State to assess the inadequacy of representation of SCs and STs in promotional posts, by taking into account relevant factors. (Para 30) Jarnail Singh v. Lachhmi Narain Gupta, 2022 LiveLaw (SC) 94 : 2022 (2) SCALE 494

Constitution of India, 1950; Article 16 - Reservation in Promotion - We are not inclined to express any view on discontinuation of reservations in totality, which is completely within the domain of the legislature and the executive. As regards review, we are of the opinion that data collected to determine inadequacy of representation for the purpose of providing reservation in promotions needs to be reviewed periodically. The period for review should be reasonable and is left to the Government to set out. (Para 31) Jarnail Singh v. Lachhmi Narain Gupta, 2022 LiveLaw (SC) 94 : 2022 (2) SCALE 494

Constitution of India, 1950; Article 16 - Reservation in Promotion - The conclusion in B.K. Pavitra & Ors. v. Union of India (2019) 16 SCC 129 approving the collection of data on the basis of ‘groups’ and not cadres is contrary to the law laid down by this Court in M. Nagaraj & Ors. v. Union of India (2006) 8 SCC 212 and Jarnail Singh & Ors. v. Lachhmi Narain Gupta & Ors.(2018) 10 SCC 396 – The State should justify reservation in promotions with respect to the cadre to which promotion is made. Taking into account the data pertaining to a ‘group’, which would be an amalgamation of certain cadres in a service, would not give the correct picture of the inadequacy of representation of SCs and STs in the cadre in relation to which reservation in promotions is sought to be made. Rosters are prepared cadre-wise and not group-wise. Sampling method which was adopted by the Ratna Prabha Committee might be a statistical formula appropriate for collection of data. However, for the purpose of collection of quantifiable data to assess representation of SCs and STs for the purpose of providing reservation in promotions, cadre, which is a part of a ‘group’, is the unit and the data has to be collected with respect to each cadre. (Para 47) Jarnail Singh v. Lachhmi Narain Gupta, 2022 LiveLaw (SC) 94 : 2022 (2) SCALE 494

Service Law - If a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she has suffered stagnation. This is because, it is not a case of lack of promotional opportunities but an employee opting to forfeit offered promotion, for her own personal reasons. However, this vital aspect was not appropriately appreciated by the High Court while granting relief to the employees. (Para 16) Union of India v. Manju Arora, 2022 LiveLaw (SC) 1 : (2022) 2 SCC 151

Public Servants

Service Law - Public Servants - Conditions of service of a public servant, including matters of promotion and seniority are governed by the extant rules - The statement in Y.V. Rangaiah v. J. Sreenivasa Rao that, "the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules", does not reflect the correct proposition of law governing services under the Union and the States under part XIV of the Constitution - The rights and obligations of persons serving the Union and the States are to be sourced from the rules governing the services. (Para 10, 37.3) State of Himachal Pradesh v. Raj Kumar, 2022 LiveLaw (SC) 502 : 2022 (8) SCALE 678

Railway

Service Law - Railway Employees - The employees working under the same employer – Railway Board working in different Zones/Divisions are required to be treated similarly and equally and are entitled to similar benefits and are entitled to the same treatment - Commission Vendors/bearers working in the Northern Railway are entitled to have 50% of their services rendered prior to their regularization to be counted for pensionary benefits. Union of India v. Munshi Ram, 2022 LiveLaw (SC) 891

Constitution of India, 1950; Article 16 - Railways LARGESS Scheme - Scheme provided an avenue for backdoor entry into service and was contrary to the mandate of Article 16 which guarantees equal opportunity in matters of public employment. Chief Personnel Officer v. A. Nishanth George, 2022 LiveLaw (SC) 277 : 2022 (2) SCALE 357

Constitution of India, 1950; Article 16 - Railways LARGESS Scheme - Appeal against High Court judgment which held that though the LARGESS Scheme was terminated, since the respondent’s father superannuated on 1 January 2015 prior to 27 January 2017, the benefit of the scheme could be extended to him in terms of the notification dated 28 September 2018- Allowed - The impugned judgment issuing a mandamus for the appointment of the respondent cannot be sustained. Chief Personnel Officer v. A. Nishanth George, 2022 LiveLaw (SC) 277 : 2022 (2) SCALE 357

Regularization

Service Law - Regularization - A public employer such as LIC cannot be directed to carry out a mass absorption of over 11,000 workers on such flawed premises without following a recruitment process which is consistent with the principles of equality of opportunity governed by Articles 14 and 16 of the Constitution. Such an absorption would provide the very back-door entry, which negates the principle of equal opportunity and fairness in public employment, which has been specifically decried by this Court in Secretary, State of Karnataka v. Umadevi. (Para 74.iii) Ranbir Singh v. S.K. Roy, 2022 LiveLaw (SC) 417 : 2022 (7) SCALE 110

Service Law - Regularization - Appeal against High Court order which allowed writ petition filed by few employees claiming parity in date of regularization- Allowed - date of regularization and grant of pay scale is a prerogative of the employer/screening committee and no parity can be claimed in the matter of regularization in different years. Ajmer Vidhyut Vitran Nigam Ltd. v. Chiggan Lal, 2022 LiveLaw (SC) 296

Service Law - Regularization - State of Karnataka v. Umadevi (2006) 4 SCC 1 - The purpose and intent of the decision in Umadevi (supra) was, (1) to prevent irregular or illegal appointments in the future, and (2) to confer a benefit on those who had been irregularly appointed in the past and who have continued for a very long time. The decision of Umadevi (supra) may be applicable in a case where the appointments are irregular on the sanctioned posts in regular establishment. The same does not apply to temporary appointments made in a project/programme. (Para 8) State of Gujarat v. R.J. Pathan, 24 Mar 2022, 2022 LiveLaw (SC) 313 : (2022) 5 SCC 394

Service Law - Regularization - The date from which regularization is to be granted is a matter to be decided by the employer keeping in view a number of factors like the nature of the work, number of posts lying vacant, the financial condition of the employer, the additional financial burden caused, the suitability of the workmen for the job, the manner and reason for which the initial appointments were made etc. The said decision will depend upon the facts of each year and no parity can be claimed based on regularization made in respect of the earlier years. (Para 9-12) Ajmer Vidhyut Vitran Nigam Ltd. v. Chiggan Lal, 2022 LiveLaw (SC) 296

Reinstatement

Service Law - Appeal against High Court judgment which directed the reinstatement of an employee with back-wages - Allowed - A stale claim cannot be revived by a representation. Nagar Panchayat v. Hanuman Prasad Dwivedi, 2022 LiveLaw (SC) 53 : 2022 (4) SCALE 497

Removal of Service

Constitution of India, 1950; Article 226 - The appellant was serving as a Branch Officer of a Bank. A complaint was made against him by one borrower of the Bank alleging that he had sanctioned the limit of loan of Rs.1,50,000/­ which was later on reduced to Rs.75,000/ - when the borrower refused to give bribe demanded by him. The disciplinary proceedings were initiated against him. The inquiry officer held that most of the charges were proved. The disciplinary authority/Chairman of the Bank passed an order of removal of the appellant from service. The Appellate Authority dismissed the appeal filed by him. The Uttarakhand High Court also dismissed the writ petition confirming the order of removal from service. Partly allowing the appeal, the Supreme Court held that removal of service can be said to be disproportionate to the charges and misconduct held to be proved. Therefore, the High Court order was modified to the extent substituting the punishment from that of removal of service to that of compulsory retirement. Umesh Kumar Pahwa v. Uttarakhand Gramin Bank, 2022 LiveLaw (SC) 155 : AIR 2022 SC 1041 : (2022) 4 SCC 385

Revision

Service Law - The manner in which and the period over which revisions should take place of pensions, salaries and other financial benefits is a pure question of policy. (Para 37) Indian Ex Servicemen Movement v. Union of India, 2022 LiveLaw (SC) 289 : (2022) 7 SCC 323

Salary

Service Law - Even if the appointment was irregular, the appellant had discharged the duties and in lieu of duties, he had to be paid. The State cannot take any work from any employee without payment of any salary. Man Singh v. State of Uttar Pradesh, 2022 LiveLaw (SC) 341

Sashastra Seema Bal (SSB)

Service Law - Sashastra Seema Bal (SSB) - A member of the disciplined force is expected to follow the rules, have control over his mind and passion, guard his instincts and feelings and not allow his feelings to fly in a fancy. (Para 9) Anil Kumar Upadhyay v. Director General, SSB, 2022 LiveLaw (SC) 392 : AIR 2022 SC 2008

Service Law - Sashastra Seema Bal (SSB) - Appeal against Gauhati High court judgment upholding the order of disciplinary authority removing the appellant from service - Dismissed If the conduct on the part of the appellant entering the Mahila Barrack of the Battalion in the midnight is approved, in that case, it would lead to compromising the security of the occupants of the Mahila Barrack. Therefore, the disciplinary authority was absolutely justified in imposing the punishment/penalty of ‘removal from service’ by modifying the earlier punishment of dismissal. Anil Kumar Upadhyay v. Director General, SSB, 2022 LiveLaw (SC) 392 : AIR 2022 SC 2008

Selection Process

Service Law - A candidate who has participated in the selection process adopted is estopped and has acquiesced himself from questioning it. (Para 21) State of Uttar Pradesh v. Karunesh Kumar, 2022 LiveLaw (SC) 1035

Service Law - Selection process held in violation of service rules - High Court division bench applies principle of estoppel to reject challenge - Supreme Court sets aside the HC verdict. Krishna Rai v. Benarus Hindu University, 2022 LiveLaw (SC) 553 : (2022) 8 SCC 713

Service Law - Principle governing changing the rules of game would not have any application when the change is with respect to the selection process but not the qualification or eligibility - In other words, after the advertisement is made followed by an application by a candidate with further progress, a rule cannot be brought in, disqualifying him to participate in the selection process. It is only in such cases, the principle aforesaid will have an application or else it will hamper the power of the employer to recruit a person suitable for a job. (Para 32) State of Uttar Pradesh v. Karunesh Kumar, 2022 LiveLaw (SC) 1035

Supernnuation

Service Law - Madhya Pradesh - Teachers in govt aided private educational institutions entitled to supernnuation age of 65 years. Dr. Jacob Thudipara v. State of Madhya Pradesh, 2022 LiveLaw (SC) 446 : AIR 2022 SC 2042 : (2022) 7 SCC 764

Suppression of Information

Service Law - A non-disclosure of material information itself could be a ground for cancellation of employment or termination of services - Employer would not be obliged to ignore such defaults and shortcomings. Where suppression of relevant information is not a matter of dispute, there cannot be any legal basis for the Court to interfere - The cases of non-disclosure of material information and of submitting false information have been treated as being of equal gravity. Union of India v. Dillip Kumar Mallick, 2022 LiveLaw (SC) 360

Service Law - Suppression of information about criminal cases - This Court has held that giving of a wrong information disentitles the candidate for appointment -An employee desirous of holding civil post has to act with utmost good faith and truthfulness. Truthfulness cannot be made causality by an aspirant much more for a candidate aspiring to be a teacher. (Paras 10, 11 and 12) Government of NCT of Delhi v. Bheem Singh Meena, 2022 LiveLaw (SC) 339

Service Law - Suppression of material fact by candidate in respect of his criminal antecedents and making a false statement in the application Form - Principles discussed. (Para 6-7) State of Rajasthan v. Chetan Jeff, 2022 LiveLaw (SC) 483 : AIR 2022 SC 2274

Service Law - Suppression of Material Information - The candidate who intend to participate in the selection process is required to furnish correct information relating to his character and antecedents in the verification/attestation form before or after his induction into service - The person who has suppressed the material information, cannot claim unfettered right of seeking appointment or continuity in service but, at the same time, he has a right not to be dealt with arbitrarily and power has to be exercised in reasonable manner with objectivity having due regard to the facts of case on hand. The yardstick which has to be applied always depends upon the nature of post, nature of duties, impact of suppression on suitability has to be considered by the competent authority considering post/nature of duties/services and power has to be exercised on due diligence of various aspects at the given time and no hard and fast rule of thumb can be laid down in this regard. (Para 15) Umesh Chandra Yadav v. Inspector General and Chief Security Commissioner, 2022 LiveLaw (SC) 300 : 2022 (4) SCALE 680

Service Law - Mere suppression of material/false information in a given case does not mean that the employer can arbitrarily discharge/terminate the employee from service - Mere suppression of material / false information regardless of the fact whether there is a conviction or acquittal has been recorded, the employee / recruit is not to be discharged/terminated axiomatically from service just by a stroke of pen - The effect of suppression of material / false information involving in a criminal case, if any, is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance / suitability of the employee into service - The person who has suppressed the material information or has made false declaration indeed has no unfettered right of seeking appointment or continuity in service, but at least has a right not to be dealt with arbitrarily and power has to be judiciously exercised by the competent authority in a reasonable manner with objectivity having due regard to the facts of the case on hand. Pawan Kumar v. Union of India, 2022 LiveLaw (SC) 441 : AIR 2022 SC 2829

Service Law - Appeal against the High Court judgment which upheld the cancellation of appointment of the appellant on the premise of non­disclosure of criminal case being instituted against him in the year 1997, when he was a juvenile - Allowed - the appellant was a juvenile when a criminal case was registered against him and was also a juvenile when the order of discharge was passed - This was indisputedly a special circumstance indeed which was not taken into consideration by the authority while passing the order of cancellation of his appointment - The seriatim of facts cumulatively indicate that the nature of information which was not disclosed by the appellant, in any manner, could be considered to be a suppression of material information. Umesh Chandra Yadav v. Inspector General and Chief Security Commissioner, 2022 LiveLaw (SC) 300 : 2022 (4) SCALE 680

Service Law - Appeal against Orissa High Court direction to impose 'any lesser punishment' to employee terminated from service for non-disclosure of criminal cases - Allowed - In a case of the present nature where a criminal case was indeed pending against the respondent and the facts were altogether omitted from being mentioned, the employer would be obliged to ignore such defaults and shortcomings. Union of India v. Dillip Kumar Mallick, 2022 LiveLaw (SC) 360

Vested Right

Service Law - The concept of “vested right”. (Para 33) Vice Chairman Delhi Development Authority v. Narender Kumar, 2022 LiveLaw (SC) 261 : 2022 (4) SCALE 512

Transfer

Service Law - Transfer - Normally an order of transfer, which is an incident of service should not be interfered with, unless it is found that the same is mala fide - Mala fide is of two kinds — one ‘malice in fact’ and the second ‘malice in law’. When an order is not based on any factor germane for passing an order of transfer and based on an irrelevant ground, such an order would not be sustainable in law. (Para 61) Ms. X v. Registrar General, 2022 LiveLaw (SC) 150 : 2022 (3) SCALE 99

Service Law - Transfer Policy - Rights of Persons with Disabilities Act, 2016 - A statutory mandate for recognizing the principle of reasonable accommodation for the disabled members of society - The formulation of a policy therefore, must take into account the mandate which Parliament imposes as an intrinsic element of the right of the disabled to live with dignity. (Para 49) S.K. Nausad Rahman v. Union of India, 2022 LiveLaw (SC) 266 : AIR 2022 SC 1494

Service Law - Transfer Policy - The State while formulating a policy for its own employees has to give due consideration to the importance of protecting family life as an element of the dignity of the person and a postulate of privacy. (Para 51) S.K. Nausad Rahman v. Union of India, 2022 LiveLaw (SC) 266 : AIR 2022 SC 1494

Service Law - Executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting. Individual convenience of persons who are employed in the service is subject to the overarching needs of the administration. (Para 25) S.K. Nausad Rahman v. Union of India, 2022 LiveLaw (SC) 266 : AIR 2022 SC 1494

Service Law - Appeals against a Kerala High Court judgment which rejected the challenge against a circular issued by the Central Board of Indirect Taxes and Customs (CBIC) in 2018 withdrawing Inter-Commissionerate Transfers (ICT) - Dismissed - While we uphold the judgment of the Division Bench of the Kerala High Court, we leave it open to the respondents to revisit the policy to accommodate posting of spouses, the needs of the disabled and compassionate grounds. S.K. Nausad Rahman v. Union of India, 2022 LiveLaw (SC) 266 : AIR 2022 SC 1494

Uniformed Service

Service Law - Rejection of candidature of a candidate who applied to post of constable upheld - An employee in the uniformed service presupposes a higher level of integrity as such a person is expected to uphold the law and on the contrary any act in deceit and subterfuge cannot be tolerated. State of Rajasthan v. Chetan Jeff, 2022 LiveLaw (SC) 483 : AIR 2022 SC 2274

University

Service Law - CUSAT - Director/HOD of Cochin University a teacher who was being considered for HOD on a rational basis would not be prohibited from being considered for appointment when second rotational term becomes due if he/she during the first term makes a request of being relieved from the responsibility for academic reason. Dr. Jagathy Raj V.P. v. Dr. Rajitha Kumar S., 2022 LiveLaw (SC) 145 : (2022) 6 SCC 299

Service Law - Supreme Court dismisses the review against the judgment in Professor (Dr.) Sreejith P.S. v. Dr. Rajasree M.S. & Ors 2022 LiveLaw (SC) 871 which set aside the appointment of the Vice Chancellor of the APJ Abdul Kalam Kerala Technological University in 2019. Dr. Rajasree M.S. v. Professor (Dr) Sreejith PS,, 2022 LiveLaw (SC) 1023

Voluntary Retirement

Service Law - Voluntary Retirement - Once an officer retires voluntarily, there is cessation of jural relationship resorting to a "golden handshake" between the employer and employee. Such a former employee cannot seek to agitate his past, as well as future rights, if any, sans the prescription of rules. This would include the enhanced pay scale. (Para 16) Union of India v. Manpreet Singh Poonam, 2022 LiveLaw (SC) 254 : (2022) 6 SCC 105

Service Law - Voluntary Retirement Scheme - VRS benefit is an entitlement and assumes the character of property to the employee concerned once his application for VRS is accepted. It is the right of a person under Article 300A of the Constitution of India to have the VRS benefit to be given on accurate assessment thereof, the employer here being a public sector unit. If at the time of quantifying the VRS benefit after accepting an employee's application for voluntary retirement, the employer take any step that would reduce such benefit in monetary terms, such step shall have to be taken under the authority of law. (Para 21) Shankar Lal v. Hindustan Copper Ltd., 2022 LiveLaw (SC) 407 : (2022) 6 SCC 211

Voluntary Rural Education

Voluntary Rural Education Service Rules, 2010 (Rajasthan); Rule 5 (viii) - The condition in clause (viii) of Rule 5 i.e., carry forward of balance privilege leave, is barred and requiring employees to seek encashment from their previous employer, i.e., aided institutions, is an arbitrary and unconscionable condition, which cannot be enforced. (Para 20) Jagdish Prasad Saini v. State of Rajasthan, 2022 LiveLaw (SC) 801 : AIR 2022 SC 5478

Service Tax

Service Tax - Finance Act 1994 - Held that for the period pre-Finance Act, 2007, service tax was not leviable on the indivisible/composite works contracts. Total Environment Building Systems Pvt. Ltd. v. Deputy Commissioner of Commercial Taxes, 2022 LiveLaw (SC) 656

Service Tax - Finance Act 1994 - The contention of revenue to the effect that even prior to the 2007 amendment being made to the Finance Act, 1994 service tax on works contract was leviable is not correct. It was being levied on purely service contract and not on service element of works contract as there was no definition of a works contract till then. Hence, the amendment made to the Finance Act, 1994 by insertion of the definition of works contract as under clause (zzzza) is not clarificatory in nature. (Para 12) Total Environment Building Systems Pvt. Ltd. v. Deputy Commissioner of Commercial Taxes, 2022 LiveLaw (SC) 656

Service Tax - License to use software through End User License Agreement a "deemed sale" as per Article 366 (29A) (d) of the Constitution - Service tax not leviable merely because updates are given to the customer. Commissioner of Service Tax New Delhi v. Quick Heal Technologies Ltd, 2022 LiveLaw (SC) 660 : AIR 2022 SC 3660

Service Tax - Sale of software - whether service tax leviable - Once a lumpsum has been charged for the sale of CD (as in the case on hand) and sale tax has been paid thereon, the revenue thereafter cannot levy service tax on the entire sale consideration once again on the ground that the updates are being provided. We are of the view that the artificial segregation of the transaction, as in the case on hand, into two parts is not tenable in law. It is, in substance, one transaction of sale of software and once it is accepted that the software put in the CD is "goods", then there cannot be any separate service element in the transaction. We are saying so because even otherwise the user is put in possession and full control of the software. It amounts to "deemed sale" which would not attract service tax. (Para 55) Commissioner of Service Tax New Delhi v. Quick Heal Technologies Ltd, 2022 LiveLaw (SC) 660 : AIR 2022 SC 3660

Service Tax - Whether contract is for job work or for supply of manpower - Agreement has to be read as a composite whole - In this case, though ostensibly, the agreement contains a provision for payment on the basis of the rates mentioned in Schedule II, the agreement has to be read as a composite whole. On reading the agreement as a whole, it is apparent that the contract is pure and simple a contract for the provision of contract labour. An attempt has been made to camouflage the contract as a contract for job work to avail of the exemption from the payment of service tax. The judgment of the Tribunal does not, in the circumstances, suffer from any error of reasoning. (Para 17) Adiraj Manpower Services Pvt. Ltd. v. Commissioner of Central Excise Pune II, 2022 LiveLaw (SC) 190 : AIR 2022 SC 1426

Service Tax on Work Contracts - The judgment in Larsen and Toubro Ltd. (supra) has been correctly decided and does not call for a reconsideration insofar as the period prior to 1st June, 2007 is concerned. (Para 13) Total Environment Building Systems Pvt. Ltd. v. Deputy Commissioner of Commercial Taxes, 2022 LiveLaw (SC) 656

Show Cause Notice

Show Cause Notice - Fundamental purpose behind the serving of a show -­cause notice is to make the noticee understand the precise case set up against him which he has to meet. This would require the statement of imputations detailing out the alleged breaches and defaults he has committed, so that he gets an opportunity to rebut the same. Another requirement is the nature of action which is proposed to be taken for such a breach. (Para 8.6) State of Odisha v. Panda Infraproject, 2022 LiveLaw (SC) 206 : (2022) 4 SCC 393

Slum Areas

Slum Areas (Improvement and Clearance) Act, 1973 (Karnataka); Section 20 - Constitutional Validity - Karnataka High Court struck down the provision as unconstitutional, in appeal, the Supreme Court held: High Court has dealt with the question of validity of Section 20 in a casual manner. That cannot be countenanced inasmuch as the Constitutional Court for answering the assail on this count, in the first place, need to examine the scheme of the 1973 Act, its objects and purposes as also the question: whether the payment of amount specified as three hundred times the property tax payable in respect of such land on the date of publication would be a permissible method of determination of the amount or is per se unjust, unfair or unreasonable - Impugned judgment set aside and remanded. State of Karnataka v. B.R. Muralidhar, 2022 LiveLaw (SC) 637

Small Cause Courts

Small Cause Courts Act, 1964 (Karnataka); Section 18 - High Court is empowered to interfere with findings of fact only if the findings are perverse or based on no evidence or suffering from error of law or there has been non-appreciation or non-consideration of a material on record by the court(s) below - That another view is possible based on the evidence on record can be no ground for the High Court to interfere with an order of court(s) below in exercise of its revisional jurisdiction - When the judgment and decree of the Civil Court is not 'according to law,' the High Court is certainly within its rights to set aside the decree in exercise of its revisional jurisdiction. (Para 6, 11) K.M. Manjunath v. Erappa G., 2022 LiveLaw (SC) 561

Societies Registration Act, 1860

Societies Registration Act, 1860; Section 6 – Travancore ­ Cochin Literary, Scientific and Charitable Societies Registration Act, 1955; Section 9 - Unless the plaintiff in a suit which claims to be a society, demonstrates that it is a registered entity and that the person who signed and verified the pleadings was authorised by the bye­laws to do so, the suit cannot be entertained. The fact that the plaintiff in a suit happens to be a local unit or a Sakha unit of a registered society is of no consequence, unless the bye­laws support the institution of such a suit. (Para 15) P. Nazeer v. Salafi Trust, 2022 LiveLaw (SC) 334 : 2022 (5) SCALE 516

Societies Registration Act, 1860; Section 6 – Travancore ­ Cochin Literary, Scientific and Charitable Societies Registration Act, 1955; Section 9 - Unless the plaintiff in a suit which claims to be a society, demonstrates that it is a registered entity and that the person who signed and verified the pleadings was authorised by the bye­laws to do so, the suit cannot be entertained. The fact that the plaintiff in a suit happens to be a local unit or a Sakha unit of a registered society is of no consequence, unless the bye­laws support the institution of such a suit. (Para 15) P. Nazeer v. Salafi Trust, 2022 LiveLaw (SC) 334 : 2022 (5) SCALE 516

Societies Registration Act, 1860; Section 6 – Travancore ­ Cochin Literary, Scientific and Charitable Societies Registration Act, 1955; Section 9 - Unless the plaintiff in a suit which claims to be a society, demonstrates that it is a registered entity and that the person who signed and verified the pleadings was authorised by the bye­laws to do so, the suit cannot be entertained. The fact that the plaintiff in a suit happens to be a local unit or a Sakha unit of a registered society is of no consequence, unless the bye­laws support the institution of such a suit. (Para 15) P. Nazeer v. Salafi Trust, 2022 LiveLaw (SC) 334 : 2022 (5) SCALE 516

Special Relief Act, 1963

Special Relief Act, 1963; Section 28 - A suit for specific performance does not come to an end on the passing of a decree and the court which has passed the decree for specific performance retains control over the decree even after the decree has been passed. Section 28 not only permits the judgment ­debtors to seek rescission of the contract but also permits extension of time by the court to pay the amount. The power under this section is discretionary and the court has to pass an order as the justice of the case may require. (Para 11) Kishor Ghanshyamsa Paralikar v. Balaji Mandir Sansthan Mangrul (Nath), 2022 LiveLaw (SC) 528

Special Relief Act, 1963; Section 28 - Consent Decrees - Time for payment of sale consideration may be extended even in a consent decree. Kishor Ghanshyamsa Paralikar v. Balaji Mandir Sansthan Mangrul (Nath), 2022 LiveLaw (SC) 528

Specific Relief Act, 1963 - Contract Act, 1872; Section 55 - Defense under Section 55 of Contract Act is valid against anyone who is seeking the relief of specific performance. Desh Raj v. Rohtash Singh, 2022 LiveLaw (SC) 1026

Specific Relief Act, 1963 - Section 21(5) - The scope of Section 21 (4) and (5) was examined by this Court in Shamsu Suhara Beevi v. G. Alex and Another (supra). This Court referred to the Law Commission of India's recommendation that in no case the compensation should be decreed, unless it is claimed by a proper pleading. However, the Law Commission was of the opinion that it should be open to the plaintiff to seek an amendment to the plaint, at any stage of the proceedings in order to introduce a prayer for compensation, whether in lieu or in addition to specific performance. In the said case no claim for compensation for breach of agreement of sale was claimed either in addition to or in substitution of the performance of the agreement. Admittedly, there was no amendment to the plaint asking for compensation either in addition or in substitution of the performance of an agreement of sale. (Para 21) Universal Petro Chemicals Ltd. v. B.P.PLC, 2022 LiveLaw (SC) 185 : AIR 2022 SC 1183 : (2022) 6 SCC 157

Specific Relief Act, 1963 - Section 21(5) - Whether compensation can be granted in lieu of specific performance unless claimed in the plaint - Supreme Court disallows claim for compensation as it was not specifically claimed in the plaint. Universal Petro Chemicals Ltd. v. B.P.PLC, 2022 LiveLaw (SC) 185 : AIR 2022 SC 1183 : (2022) 6 SCC 157

Specific Relief Act, 1963 - Section 38 - Suit for Permanent Injunction - Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law. (Para 11.1) Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 LiveLaw (SC) 241 : 2022 (4) SCALE 352

Specific Relief Act, 1963 - Section 38 - Suit for Permanent Injunction - Appeal against High Court judgment which dismissed second appeal to uphold Trial Court judgment which granted relief of permanent injunction while declining to grant the declaratory relief - Allowed - After having held that the plaintiff had no title and after dismissing the suit qua the cancellation of the registered sale deed and the declaration, the plaintiff is not entitled to relief of permanent injunction against defendant, the true owner. Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 LiveLaw (SC) 241 : 2022 (4) SCALE 352

Specific Relief Act, 1963 - Section 38 - Suit Permanent Injunction - Once the suit is held to be barred by limitation qua the declaratory relief and when the relief for permanent injunction was a consequential relief, the prayer for permanent injunction, which was a consequential relief can also be said to be barred by limitation. (Para 8.3) Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 LiveLaw (SC) 241 : 2022 (4) SCALE 352

Specific Relief Act, 1963 - Specific Performance Suit - A decree could not have been obtained behind the back of a bona fide purchaser, more so when the transaction had taken place prior to the institution of the suit for specific performance. (Para 23) Seethakathi Trust Madras v. Krishnaveni, 2022 LiveLaw (SC) 58 : AIR 2022 SC 558 : (2022) 3 SCC 150

Specific Relief Act, 1963 - Specific Performance Suit - A plaintiff cannot examine his attorney holder in his place, who did not have personal knowledge either of the transaction or of his readiness and willingness in a suit for specific performance. Thus, a third party who had no personal knowledge cannot give evidence about such readiness and willingness, even if he is an attorney holder of the person concerned. (Para 12) Seethakathi Trust Madras v. Krishnaveni, 2022 LiveLaw (SC) 58 : AIR 2022 SC 558 : (2022) 3 SCC 150

Specific Relief Act, 1963 - Specific Performance Suit - There must be a specific issue framed on readiness and willingness on the part of the plaintiff in a suit for specific performance and before giving any specific finding, the parties must be put to notice. The object and purpose of framing the issue is so that the parties to the suit can lead the specific evidence on the same. (Para 4.1) V.S. Ramakrishnan v. P.M. Muhammed Ali, 2022 LiveLaw (SC) 935

Specific Relief Act, 1963 - Suit for injunction simplicitor on the basis of unregistered agreement to sell - The plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered document/agreement to sell, no decree for specific performance could have been passed. The plaintiff cannot get the relief by clever drafting - The plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession. (Para 6) Balram Singh v. Kelo Devi, 2022 LiveLaw (SC) 800

Specific Relief Act, 1963 - Suit for specific performance - The court should look at all the relevant circumstances including the time limit(s) specified in the agreement and determine whether its discretion to grant specific performance should be exercised - While exercising its discretion, the court should bear in mind that when the parties prescribe certain time limit(s) for taking steps by one or the other party, it must have some significance and that the said time limit(s) cannot be ignored altogether on the ground that time is not the essence of the contract. (Para 12) Kolli Satyanarayana v. Valuripalli Kesava Rao Chowdary, 2022 LiveLaw (SC) 807

Specific Relief Act, 1963 - Suit for specific performance - When suit property was jointly owned by the defendant along with his wife and three sons, an effective decree could not have been passed affecting the rights of the defendant's wife and three sons without impleading them. (Para 19) Moreshar Yadaorao Mahajan v. Vyankatesh Sitaram Bhedi, 2022 LiveLaw (SC) 802 : AIR 2022 SC 4710

Specific Relief Act, 1963 - Suit for specific performance for agreement to sell - Once the execution of agreement to sell and the payment of advance substantial sale consideration is admitted by the vendor, nothing further is required to be proved by the vendee. (Para 5.2) P. Ramasubbamma v. V. Vijayalakshmi, 2022 LiveLaw (SC) 375 : AIR 2022 SC 1793 : (2022) 7 SCC 384

Specific Relief Act, 1963 - The Court is obliged to take judicial notice of the phenomenal rise in the price of real estate - Having paid an insignificant amount the Plaintiff was not entitled to discretionary equitable relief of Specific Performance. (Para 38-39) U.N. Krishnamurthy v. A.M. Krishnamurthy, 2022 LiveLaw (SC) 588 : AIR 2022 SC 3361

Specific Relief Act, 1963 - The fact that the suit had been filed after three years, just before expiry of the period of limitation, is also a ground to decline the Plaintiff the equitable relief of Specific Performance for purchase of immovable property - The courts will also frown upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean that a purchaser can wait for one or two years to file a suit and obtain Specific Performance. The three year period is intended to assist the purchaser in special cases, as for example where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser. (Para 43) U.N. Krishnamurthy v. A.M. Krishnamurthy, 2022 LiveLaw (SC) 588 : AIR 2022 SC 3361

Specific Relief Act, 1963; Section 10 - 2018 amendment to the Specific Relief Act is prospective and cannot apply to those transactions that took place prior to its coming into force. Katta Sujatha Reddy v. Siddamsetty Infra Projects Pvt. Ltd., 2022 LiveLaw (SC) 712 : AIR 2022 SC 5435

Specific Relief Act, 1963; Section 12 - A Court cannot grant the relief of specific performance against a person compelling him to enter into an agreement with a third party and seek specific relief against such a third party. (Para 16) Raman (D) v. R. Natarajan, 2022 LiveLaw (SC) 760 : AIR 2022 SC 4343 : (2022) 10 SCC 143

Specific Relief Act, 1963; Section 16 - In order to prove readiness and willingness, the burden is on the purchaser to prove that they were always ready and it is only the vendor who refused to perform the contract for extraneous consideration - When the purchaser was not ready or willing to perform his part of the contract within the time stipulated and accordingly, specific performance cannot be granted for the entire contract. (Para 63-69) Katta Sujatha Reddy v. Siddamsetty Infra Projects Pvt. Ltd., 2022 LiveLaw (SC) 712 : AIR 2022 SC 5435

Specific Relief Act, 1963; Section 16 - Readiness and Willingness - it is not only necessary to view whether he had the financial capacity to pay the balance consideration, but also assess his conduct throughout the transaction - The foundation of a suit for specific performance lies in ascertaining whether the plaintiff has come to the court with clean hands and has, through his conduct, demonstrated that he has always been willing to perform the contract. (Para 25-26) Shenbagam v. KK Rathinavel, 2022 LiveLaw (SC) 74 : AIR 2022 SC 1275

Specific Relief Act, 1963; Section 16(c) - Distinction between readiness and willingness to perform the contract - Both ingredients are necessary for the relief of Specific Performance - While readiness means the capacity of the Plaintiff to perform the contract which would include his financial position, willingness relates to the conduct of the Plaintiff. (Para 34) U.N. Krishnamurthy v. A.M. Krishnamurthy, 2022 LiveLaw (SC) 588 : AIR 2022 SC 3361

Specific Relief Act, 1963; Section 16(c) - In a suit for Specific Performance of a contract, the Court is required to pose unto itself the following questions, namely:- (i) Whether there is a valid agreement of sale binding on both the vendor and the vendee and (ii) Whether the Plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963.Even in a first appeal, the first Appellate Court is duty bound to examine whether there was continuous readiness and willingness on the part of the Plaintiff to perform the contract. (Para 33-35) U.N. Krishnamurthy v. A.M. Krishnamurthy, 2022 LiveLaw (SC) 588 : AIR 2022 SC 3361

Specific Relief Act, 1963; Section 16(c) - The continuous readiness and willingness on the part of the Plaintiff a condition precedent for grant of the relief of Specific Performance-It is the bounden duty of the Plaintiff to prove his readiness and willingness by adducing evidence. This crucial facet has to be determined by considering all circumstances including availability of funds and mere statement or averment in plaint of readiness and willingness, would not suffice -Deposit of amount in court is not enough to arrive at conclusion that Plaintiff was ready and willing to perform his part of contract. (Para 24 - 46) U.N. Krishnamurthy v. A.M. Krishnamurthy, 2022 LiveLaw (SC) 588 : AIR 2022 SC 3361

Specific Relief Act, 1963; Section 20 - In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault. (Para 36) Shenbagam v. KK Rathinavel, 2022 LiveLaw (SC) 74 : AIR 2022 SC 1275

Specific Relief Act, 1963; Section 21 - Specific Relief (Amendment) Act, 2018 - After 2018 amendment, damages are now available only in addition to specific performance and not in lieu thereof. (Para 59) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729 : AIR 2022 SC 4256

Specific Relief Act, 1963; Section 21 (5) - Sub-section (5) stipulates that compensation cannot be awarded under the section unless the Plaintiff has claimed such compensation in the plaint. This provision is mandatory. (Para 55) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729 : AIR 2022 SC 4256

Specific Relief Act, 1963; Section 21, 22 - Code of Civil Procedure, 1908; Order VI Rule 17 - The provisions contained in Order VI Rule 17 of the CPC would apply to a specific performance suit and a plaintiff who has earlier failed to incorporate the reliefs for compensation or who has incorporated the reliefs for compensation but seeks amendment in the same, could seek the permission of the court to introduce these reliefs by way of amendment. (Para 66) Life Insurance Corporation v. Sanjeev Builders Pvt. Ltd., 2022 LiveLaw (SC) 729 : AIR 2022 SC 4256

Specific Relief Act, 1963; Section 22(2) - Section 22(2) of the Act is only directory - Relief of possession is ancillary to the decree for specific performance and need not be specifically claimed - The expression "at any stage of proceeding" is wide enough to allow the plaintiffs to seek relief of possession even at the appellate stage or in execution even if such prayer was required to be claimed. (Para 25 - 30) Manickam @ Thandapani v. Vasantha, 2022 LiveLaw (SC) 395

Specific Relief Act, 1963; Section 22(2) - Unless a plaintiff specifically seeks the refund of the earnest money at the time of filing of the suit or by way of amendment, no such relief can be granted to him. The prayer clause is a sine qua non for grant of decree of refund of earnest money. (Para 31) Desh Raj v. Rohtash Singh, 2022 LiveLaw (SC) 1026

Specific Relief Act, 1963; Section 41(b) and (d) - Injunction can be refused when sought to restrain any person from institution or prosecuting any proceedings in a court not subordinate to that from which the injunction is sought - Injunction can be refused when sought to restrain any person from instituting or prosecuting any proceeding in a criminal matter. Frost International Ltd. v. Milan Developers & Builders, 2022 LiveLaw (SC) 340 : (2022) 8 SCC 633

Specific Relief Act, 1963; Section 41(b) and (d) - Injunction can be refused when sought to restrain any person from institution or prosecuting any proceedings in a court not subordinate to that from which the injunction is sought - Injunction can be refused when sought to restrain any person from instituting or prosecuting any proceeding in a criminal matter. Frost International Ltd. v. Milan Developers & Builders, 2022 LiveLaw (SC) 340 : (2022) 8 SCC 633

Sports Law

Sports Law - Board of Control of Cricket in India - Supreme Court approves amendments proposed to the Constitution of BCCI. Board of Control for Cricket in India v. Cricket Association of Bihar, 2022 LiveLaw (SC) 770

Sports Law - National Sports Code 2011 can't be read like a statute' : Supreme Court allows players to vote in AIFF executive committee election. All India Football Federation v. Rahul Mehra, 2022 LiveLaw (SC) 661

Stamp Act, 1899

Stamp Act, 1899 (West Bengal amendment); Section 47A - Objective of amendment - In case of under valuation of property, an aspect not uncommon in our country, where consideration may be passing through two modes – one the declared 22 price and the other undeclared component, the State should not be deprived of the revenue. Such transactions do not reflect the correct price in the document as something more has been paid through a different method. The objective is to take care of such a scenario so that the State revenue is not affected and the price actually obtainable in a free market should be capable of being stamped. If one may say, it is, in fact, a reflection on the manner in which the transfer of an immovable property takes place as the price obtainable in a transparent manner would be different. (Para 23) Registrar of Assurances v. ASL Vyapar Pvt. Ltd., 2022 LiveLaw (SC) 942

Stamp Act, 1899 (West Bengal amendment); Section 47A - Public auction monitored by the court, the discretion would not be available to the Registering Authority under Section 47A - Public auction carried out through court process/receiver as that is the most transparent manner of obtaining the correct market value of the property - Registering Officer cannot have any reason to believe that the market value of the property was not duly set forth - Independent determination by a Registering Officer would not apply to a court sale but to a private transaction. (Para 22-31) Registrar of Assurances v. ASL Vyapar Pvt. Ltd., 2022 LiveLaw (SC) 942

Stamp Act, 1899 (West Bengal amendment); Section 47A - The "reason to believe" of a Registering Officer has to be based on ground realities and not some whimsical determination. (Para 29) Registrar of Assurances v. ASL Vyapar Pvt. Ltd., 2022 LiveLaw (SC) 942

Stamp Act, 1958 (Bombay) - Once a single instrument has been charged under a correct charging provision of the Statute, namely Article 20(a), the Revenue cannot split the instrument into two, because of the reduction in the stamp duty facilitated by a notification of the Government issued under Section 9(a). In other words after having accepted the deed of assignment as an instrument chargeable to duty as a conveyance under Article 20(a) and after having collected the duty payable on the same, it is not open to the respondent to subject the same instrument to duty once again under Article 45(f), merely because the appellant had the benefit of the notifications under Section 9(a). (Para 16) Asset Reconstruction Co. v. Chief Controlling Revenue Authority, 2022 LiveLaw (SC) 415 : 2022 (6) SCALE 657

Stamp Act, 1958 (Bombay) - Stamp duty not separately payable on Power of Attorney executed along with deed assigning debt under the SARFAESI Act. Asset Reconstruction Co. v. Chief Controlling Revenue Authority, 2022 LiveLaw (SC) 415 : 2022 (6) SCALE 657

Stamp Act, 1958 (Maharashtra) - Court or a Tribunal cannot impound an insufficiently stamped document unless and until the same is produced on record before it. Widescreen Holdings v. Religare Finvest, 2022 LiveLaw (SC) 435

State Reorginzation

State Reorginzation - Parliament must provide clarity on reservation benefits in successor state - In my opinion, given that determination of whether a community or caste has to be notified as Scheduled Caste, or Tribe, is in relation to a state or union territory (i.e., it is primarily people-centric having regard to the existing geo-political unit), and when a determination is so made that a particular community belongs to such state, in the event of re-organization, then, Parliament has a duty to provide clarity, by way of express provision- Given that states reorganizations occur as a consequence of political demands, or as an articulation of regional aspirations, there is no agency of the individual (i.e., members of Scheduled Caste or Scheduled Tribe com- munities) in such eventuality. There is, consequently, an obligation on the part of Parliament, to provide clarity about the kind of protection, regarding the status of such individuals forced to choose one among the newly reorganized states, and ensure that they are not worse off as a result of reorganization (Justice Ravindra Bhat, Para 10) Akhilesh Prasad v. Jharkhand Public Service Commission, 2022 LiveLaw (SC) 434

Statutory Contract

Statutory Contract - A contract containing prescribed terms and conditions being mandatory under the Statute, results in the contract becoming a Statutory Contract. (Para 19, 26) MP Power Management Company Ltd. v. Sky Power Southeast Solar India Pvt. Ltd., 2022 LiveLaw (SC) 966

Subordinate Judiciary

Subordinate Judiciary - Supreme Court directs pay hike for subordinate judiciary as per the recommendations of the Second National Judicial Pay Commission w.e.f January 1, 2016. All India Judges Association v. Union of India, 2022 LiveLaw (SC) 635

Subordinate Legislation

Subordinate Legislation - Grounds of challenge - Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. Though it may also be questioned on the ground of unreasonableness, such unreasonableness should not be in the sense of not being reasonable, but should be in the sense that it is manifestly arbitrary (Para 22 -26) - The presumption is always with regard to the validity of a provision. The burden is on the party who challenges the validity of such provision (Para 30) - It is not permissible for the Court to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation ­making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. (Para 36-39) Dental Council of India v. Biyani Shikshan Samiti, 2022 LiveLaw (SC) 366 : AIR 2022 SC 1799 : (2022) 6 SCC 65

Subordinate Legislation - Subordinate legislation cannot override the parent statute. Subordinate legislation which is in aid of the parent statute has to be read in harmony with the parent statute. Subordinate legislation cannot be interpreted in such a manner that parent statute may become otiose or nugatory. (Para 10) Sansera Engineering Ltd. v. Deputy Commissioner, Large Tax Payer Unit, Bengaluru, 2022 LiveLaw (SC) 997

Succession Act, 1925

Succession Act, 1925; Sections 299, 279, 276, 263 - Revocation of Letters of Administration - Appeal against High Court judgment which allowed application for revocation of the Letters of Administration on the ground that all the legal heirs were not impleaded in the proceedings for the grant of Letters of Administration - Dismissed - The catch is not to be found in the distinction between Section 276 and Section 278. It is to be found in Section 263 - Illustration (ii) under Section 263 deals with a case where "the grant was made without citing parties who ought to have been cited". Swaminathan v. Alankamony, 2022 LiveLaw (SC) 276

Supreme Court Collegium

Supreme Court Collegium - The actual resolution passed by the Collegium only can be said to be a final decision of the Collegium and till then at the most, it can be said to be a tentative decision during the consultation -During the consultation if some discussion takes place but no final decision is taken and no resolution is drawn, it cannot be said that any final decision is taken by the Collegium -only the final resolution and the final decision is required to be uploaded on the Supreme Court's website. (Para 5, 5.1) Anjali Bhardwaj v. CPIO, Supreme Court of India, (RTI Cell), 2022 LiveLaw (SC) 1015

Supreme Court Rules, 2013

Supreme Court Rules, 2013; Order IV Rule 7(b)(i) - If the Vakalatnama is executed in presence of the Advocate­ on­ Record himself, it is his duty to certify that the execution was made in his presence. This certification is not an empty formality. If he knows the litigant personally, he can certify the execution. If he does not personally know the litigant, he must verify the identity of the person signing the Vakalatnama from the documents such as Aadhaar or PAN card. (Para 14) Suresh Chandra v. State of Uttar Pradesh, 2022 LiveLaw (SC) 490

Supreme Court Rules, 2013; Order IV Rule 7(b)(ii) - If the client has not signed the Vakalatnama in his presence, the AOR must ensure that it bears his endorsement as required by clause (b)(ii) of Rule 7- It is not an empty formality and therefore, it is the duty of AORs to ensure that due compliance is made with the said requirement. (Para 14) Suresh Chandra v. State of Uttar Pradesh, 2022 LiveLaw (SC) 490

Supreme Court Rules, 2013; Order XXII Rule 5 - Application seeking exemption from surrendering is not required to be filed along with a special leave petitions against cancellation of bail orders - Order XXII Rule 5, applies only to cases where the petitioner is ‘sentenced to a term of imprisonment’ and it cannot be confused with simple orders of cancellation of bail. Mahavir Arya v. State Govt. NCT of Delhi, 2022 LiveLaw (SC) 30

Surname

Surname - A surname refers to the name a person shares with other members of that person's family, distinguished from that person's given name or names; a family name. Surname is not only indicative of lineage and should not be understood just in context of history, culture and lineage but more importantly the role it plays is with regard to the social reality along with a sense of being for children in their particular environment. Homogeneity of surname emerges as a mode to create, sustain and display 'family. Akella Lalita v. Sri Konda Hanumantha Rao, 2022 LiveLaw (SC) 638 : AIR 2022 SC 3544

Surname - Andhra Pradesh HC direction to a mother who remarried another person after death of her first husband to restore surname of a child - Further direction that wherever the records permit, the name of the natural father shall be shown and if it is otherwise impermissible, the name of the present husband shall be mentioned as step-father - Allowing appeal, the Supreme Court observed: Nothing unusual in mother, upon remarriage having given the child the surname of her husband or even giving the child in adoption to her husband - The direction to include the name of the present husband as step-father in documents is almost cruel and mindless of how it would impact the mental health and self-esteem of the child - The mother being the only natural guardian of the child has the right to decide the surname of the child. She also has the right to give the child in adoption. Akella Lalita v. Sri Konda Hanumantha Rao, 2022 LiveLaw (SC) 638 : AIR 2022 SC 3544

Swatantrata Sainik Samman Pension Scheme, 1980

Swatantrata Sainik Samman Pension Scheme, 1980 - If the law or the pension scheme in question requires an application to be accompanied by Non -availability of Record Certificate (NARC), then in absence of the same, the application, if not considered, cannot be faulted. State of Madhya Pradesh v. Krishna Modi, 2022 LiveLaw (SC) 151 : (2022) 5 SCC 731

Swatantrata Sainik Samman Pension Scheme, 1980 - Mere fact that the State Government has granted pension under some freedom fighters pension scheme of the State Government would not, by itself, entitle him to claim under the scheme of the Central Government, unless he fulfills the conditions of the Central Government Scheme. State of Madhya Pradesh v. Krishna Modi, 2022 LiveLaw (SC) 151 : (2022) 5 SCC 731

Swatantrata Sainik Samman Pension Scheme, 1980 - The scheme requires the State Government to not merely forward the application but recommend such application for grant of pension. State of Madhya Pradesh v. Krishna Modi, 2022 LiveLaw (SC) 151 : (2022) 5 SCC 731

Swatantrata Sainik Samman Pension Scheme, 1980 - Those persons who had participated in the freedom struggle of our country, because of which we got independence, should certainly be honoured and if they are entitled to any benefits, which includes pension, they should definitely be provided such benefit. However, such benefits should be awarded only to those persons who are entitled for the same under any Scheme of the Government. State of Madhya Pradesh v. Krishna Modi, 2022 LiveLaw (SC) 151 : (2022) 5 SCC 731