'Unfortunate': Allahabad HC Questions UP Govt For Stationing State Forces In Education Institution Buildings For Magh Mela

'Unfortunate': Allahabad HC Questions UP Govt For Stationing State Forces In Education Institution Buildings For Magh Mela

Sparsh Upadhyay

10 Dec 2024 3:12 PM

Last week, the Allahabad High Court expressed its concerns over the Uttar Pradesh government's recent decision to requisition the buildings of educational institutions in Subedarganj (Prayagraj) to station state forces to meet any mishap on account of the upcoming Magh Mela.

The Magh Mela is one of the greatest annual religious affairs for Hindus. It is held annually in the city of Prayagraj, drawing millions of pilgrims and devotees. The mela began in November and will continue until mid-March 2025.

As part of the security and administrative preparations for the event, the Uttar Pradesh government recently took control of several educational institution buildings in and around the Mela area to station state forces.

A bench of Justice Ajit Kumar referred to the move as "unfortunate" and questioned its impact on students, especially those enrolled in institutions affiliated with the U.P. Board of High School and Intermediate Education, as board exams are approaching soon.

Pension Rules Prevailing When Voluntary Retirement Is Sought Apply To Govt Officer, Not Rules As On Expiry Of Notice Period: MP High Court

Pension Rules Prevailing When Voluntary Retirement Is Sought Apply To Govt Officer, Not Rules As On Expiry Of Notice Period: MP High Court

Anukriti Mishra

10 Dec 2024 3:32 PM

The Indore bench of the Madhya Pradesh High Court recently held that in cases of voluntary retirement, the Pension Rules as on the date of application of voluntary retirement shall be applicable and not the Rules prevailing on the date of expiration of the notice period of the government servant.

A single judge bench of Justice Vijay Kumar Shukla observed, “In case of voluntary retirement of an employee, the Rules prevailing on the date of application/notice under Rule 42(1)(a) will be applicable and not the Rules prevailing on the date of expiration of notice period.”

The court said, “The amendment in Rule 42 & 42-A of Pension Rules shall operate prospectively and not retrospectively.”

The issue raised before the court was “Whether in the case of voluntary retirement of an employee, the Rules on the date of application/notice under Rule 42(1)(a) of Pension Rules or the Rules prevailing on the date when one-month notice period expires would be applicable?”.

The court thus, referred to the provisions of Rule 42 of M.P. Pension Rules 1976. It inferred that the entire scheme of Rule 42 provides that once a notice in prescribed proforma is given, there is a specific bar of sub-rule (2) of Rule 42(1)(a) and the same cannot be withdrawn by the government servant without the approval of the competent authority.

The court said, “If the notice of voluntary retirement is not withdrawn before the date indicated in the said notice of voluntary retirement, it will automatically become operative from the date indicated in the notice of voluntary retirement and the Government Servant would be retired voluntarily from the date of his choice indicated in the said notice.”

The court further observed, “The intention of the Rule making authority is to confer an absolute and indefeasible right to the government servant to get voluntarily retire after completing qualifying services from the date on his choice indicated in the aforesaid notice.”

The present petition was filed seeking quashing of orders by which the application of the petitioner for voluntary retirement as per the unamended Rule of 42-A of M.P. Civil Services Pension Rules, 1976 prevailing at the time of the submission of the application was rejected.

The petitioner was appointed to the post of Assistant Surgeon/Insurance Health Officer in Directorate Employee State Insurance Services on an ad-hoc basis in 1985. The services of the petitioner were regularised in 1987. The petitioner submitted an application for voluntary retirement and served a notice on March 21, 2006.

On April 7, 2006 Rule 42 and 42-A of the Pension Rules were amended and as per Rule 42(1)(a) the minimum qualifying service for seeking voluntary retirement was raised from 15 years to 20 years. Further Rule 42-A was amended and earlier the qualifying service was increased with such period that would take an employee to the date of superannuation subject to a capping that the total service does not exceed 33 years.

However, after the amendment, as per Rule 42-A, a period of up to 5 years could only be added in the qualifying service, with a capping that the total service does not exceed 33 years. A formal order was issued accepting the application for voluntary retirement of the petitioner though no such formal order of acceptance was required to be passed under Rule 42 of Pension Rules. The Pension Payment Order (PPO) of the petitioner was prepared in 2009 where the total qualifying service of the petitioner was taken as 20 years 4 months and 5 days in contravention of Rule 42-A of the Pension Rules existing at the time of submission of application for voluntary retirement and issuance of notice Form 28.

The counsel for the petitioner submitted that the application of the petitioner for voluntary retirement/Notice form 28 shall be governed by the unamended provisions of Rule 42 and 42-A of Pension Rules as the amendment came into force on 07.04.2006. The said amendment would not be applicable retrospectively as an indefeasible right for seeking voluntary retirement under Rule 42 of Pension Rules has already vested on the date of filing of application itself.

The counsel for the respondents argued that in the application for voluntary retirement, the petitioner had intended the date of voluntary retirement w.e.f. 20.04.2006 and prior to the expiration of the notice period, the amendment had come into effect, therefore, the amended rules shall govern the application for voluntary retirement. It was further argued that the judgments relied upon by the petitioner were not applicable to the facts of the present case as in the present case, the amendment in the Rules had come into effect prior to expiration of notice period.

The court referred to a coordinate bench's decision in Dr. Umesh Chandra vs. State of M.P. & Ors. wherein it was held that the amended Rules cannot be made applicable with retrospective effect by which the period of service for voluntary retirement was enhanced to 25 years in place of 20 years.

The court held that the amendment in Rule 42 & 42-A of Pension Rules shall operate prospectively and not retrospectively.

The petition was thus, allowed and the orders were quashed.

“The respondents are directed to re-determine and add period of 10 years 2 months and 10 days w.e.f. 21.03.2006 to 31.05.2016 in the qualifying service of the petitioner and as a consequence to revise the pension, gratuity and other retiral benefits.”, the Court said.

Case Title: Dr. Yogesh Shah Versus Principal Secretary State Of M.P. And 4 Ors. And Others,

WRIT PETITION No. 5019 of 2012

Unauthorized Absence From Service, Sufficient Ground For Dismissal, Tripura High Court Upheld Employee's Termination

Unauthorized Absence From Service, Sufficient Ground For Dismissal, Tripura High Court Upheld Employee's Termination

Namdev Singh

10 Dec 2024 3:36 PM

A single judge bench in the High Court of Tripura, composed of Justice T Amarnath Goud ruled that the petitioner's unauthorized absence was a sufficient ground for his termination from the service as he was given sufficient opportunities to respond.

Background facts of the case

The petitioner (Employee) was appointed as a deputy secretary in the Tripura board of secondary education. He filed a writ petition under article 226 of the constitution of India, requesting for arrear pay and current salary along with the interest starting from the date of 13 July 2021. The employee claimed that he was rightfully present from 13.07.2021 to 31.07.2021, 16.12.2021 to 25.04.2023 and from 28.04.2023, asserting that he was reportedly marked absent despite attentively working on these days. Subsequently he issued a memorandum explaining his position to the authorities. In spite of this a disciplinary committee was set up , finding him guilty of grave irregularities and further recommended for his removal leading to his termination. The employee challenged the termination order on the grounds of Article 14 and violation of natural justice.

It was contended by the employee that the termination order which was passed was conflicting with the principles of natural justice. He argued that despite the submission of his explanation in the form of memorandum, the same was disregarded by the respondent- authorities. Also he claimed that no necessary opportunity was given to him for proper explanation and the issuance of show cause notice by the respondent was given without conducting a proper enquiry and was further violative of Rule-10 of Tripura Board of Secondary Education, 1982 (TBSE) Rule.

On the other hand, it was contended by the respondent firstly, that the employee was without authorization, absent from the dates presented above. Secondly, the respondent argued that proper opportunity was given to the employee before the issuance of notice. Also that fair chance of hearing was again given before the committee, and the rules and regulation of TBSE was followed on the date of passing. Thirdly, the opportunity to personally appear was also given to the employee, before the termination order.

Findings and observation of the court

It was observed by the court regarding the question of unauthorized absence on 13.07.2021 to 31.07.2021, 16.12.2021 to 25.04.2023 and from 28.04.2023, the employee failed to adequately provide sufficient evidence to determine that he was present during those days, such as affidavits, colleagues or attendance records including that he was present on those days. This lack of evidence led the court to conclude that he was not attending on those days.

The case of Krushnakant B. Parmar v. Union of India and Another (2012) was relied upon by the court wherein the Supreme Court held that absence from duty due to compelling circumstances beyond the employee's control, such as illness or hospitalization, cannot be considered willful. While such absence may amount to unauthorized absence, it does not automatically qualify as misconduct.

The D.K. Yadav v. J.M.A. Industries Ltd. (1993), as well as State of Orissa v. Dr. (Miss) Binapani Dei and Another cases were also relied upon by the court wherein the Supreme Court held that natural justice requires that no adverse action be taken against the affected individual without informing them and providing a fair opportunity to respond. Even administrative orders involving termination of employment, must comply with procedural fairness under Article 14 of the Constitution.

Further the case of Life Insurance Corporation of India v. Om Prakash was relied upon by the court wherein the Supreme Court held that an employee abandoning service without informing the employer and securing alternate employment cannot claim relief for termination based on procedural lapses. The Court emphasized that such conduct disentitles the employee from relief under Article 226 of the Constitution, as procedural deficiencies do not override clear evidence of abandonment and misconduct.

It was found by the court that the employee was given more than two opportunities for his explanation including personal hearing before the final order, leading to court concluding that the Rule 10 of TBSE was followed.

It was held by the court that employee was on unauthorized absence from the service which is a sufficient ground for termination as he was given multiple opportunities to respond. Therefore, the court dismissed the writ petition, upholding the employee's termination.

Case no. : WP(C) No. 797 of 2023

Counsel for the petitioner: P. Roy Barman, Sr. Advocate; S. Bhattacharjee, Advocate; K. Nath, Advocate

Counsel for the respondent: D. Sarma, Addl. G.A. ; Ratan Datta, Advocate

Entire Service Record, Character Rolls & Confidential Reports Of Employee Need To Be Considered Before Passing Order Of Premature Retirement : Chhattisgarh High Court

Entire Service Record, Character Rolls & Confidential Reports Of Employee Need To Be Considered Before Passing Order Of Premature Retirement : Chhattisgarh High Court

Namdev Singh

10 Dec 2024 10:00 PM

A single judge bench of the Chhattisgarh High Court comprising of Justice Rakesh Mohan Pandey, while deciding writ petition held that the Government should form opinion that the government employee needs to be compulsorily retired from service only after considering the entire service record, character rolls & confidential reports.

Background Facts

The petitioner was appointed as a daily-rated employee under the respondent. On 29.01.2005, the employee was appointed on the post of Driver against the sanctioned post. On 11.06.2012, the nomenclature of the post of the employee was changed from Driver to Driver (Heavy Vehicle). Thereafter, the petitioner was extended the benefit of the 5th pay-scale as recommended by the committee.

A criminal case was registered against the employee for the commission of offences punishable u/s 186, 294, 353 and 506 of IPC. Ultimately, it was settled between the parties and an acquittal order dated 11.06.2010 was passed. A departmental inquiry was instituted against the employee in 2009, in which punishment of stoppage of one increment with cumulative effect was inflicted upon him.

The employee obtained ACRs from 01.04.2011 till 31.03.2017. He had not completed seven years of regular service, but was compulsorily retired from service on account of attaining 50 years of age vide order dated 17.11.2017.

Aggrieved by the same, the employee filed the writ petition challenging the order dated 17.11.17. He prayed to direct the respondent to re-instate his service with all consequential benefits under the department.

It was contended by the employee that the respondent authorities failed to assess the ACRs of the entire service while passing the order of compulsory retirement. He further submitted that his conduct remained good during his service career and there were no complaints against him.

It was further contended by the employee that the he was inflicted with punishment of stoppage of one increment with non-cumulative effect and the order is under challenge before the appellate authority. He argued that the order of punishment cannot be made the basis for the punishment of compulsory retirement.

On the other hand, it was contended by the respondent that the employee was compulsorily retired as he attained 50 years of age and his overall ACRs were below average. They also submitted that the overall conduct of the employee was taken into consideration by the reviewing committee while passing the order of compulsory retirement. The respondent also mentioned about the departmental inquiry and the criminal case, which was registered against the employee.

Findings of the Court

It was observed by the court that Fundamental Rule No. 56(2)(a) states that if a government servant has completed 20 years of service or has attained 50 years of age, in that case, the State can take the decision to compulsorily retire such an employee. According to this circular, it would not be necessary to communicate the adverse remarks to such government servant. It was observed by the court that the overall grade of the employee was average or below average.

The case of Baikuntha Nath Das & Anr. Vs. Chief District Medical Officer, Baripada & Ors. (1992) was relied upon by the court, wherein the Supreme Court held that an order of compulsory retirement is not a punishment. The government have to consider the entire record of service before taking a decision in the matter, attaching more importance to record of and performance during the later years. An order of compulsory retirement is not liable to be quashed by a Court merely on the showing that while passing it uncommunicated adverse remarks were also taken into consideration.

The case of State of Gujarat and another Vs. Suryakant Chunilal Shah, (1999) was also relied upon, wherein Court held that mere involvement of the employee in a criminal case would constitute sufficient ground for compulsory retirement.

The case of Nand Kumar Verma Vs. State of Jharkhand & Ors. (2012) was relied upon by court where it was held that the employee cannot be prematurely retired from service by selectively taking into consideration the service record for certain years. Therefore the track record and service record should be taken for complete service period and premature retirement can only be ordered based on the sufficient or relevant material.

Further the case of S. Ramachandra Raju Vs. State of Orissa, (1994) was also relied upon by the court wherein it was held that in case of compulsory retirement, the government employee is entitled to draw all retiral benefits including pension. The Government should form the opinion that the government employee needs to be compulsorily retired from service only after considering the entire service record or character rolls or confidential reports.

It was observed by the court that the un-communicated adverse remarks cannot be made a basis to disturb the finding recorded by the competent authority. Also that an order of compulsory retirement is not a punishment and does not have any stigma attached to it.

It was held by the court that the decision with regard to compulsory retirement was taken by the State authorities in public interest. With the aforesaid observations, the writ petition was dismissed.

Case No. : WPS No. 2547 of 2020

Counsel for the Petitioner : Manoj Kumar Sinha, Advocate

Counsel for the Respondents : Suyash Dhar Badgaiya, Dy.G.A

Daughter Who Became Widowed/ Divorced After Death Of Govt Employee Parent Falls Outside “Family” Under Pension Rules: Rajasthan HC

Daughter Who Became Widowed/ Divorced After Death Of Govt Employee Parent Falls Outside “Family” Under Pension Rules: Rajasthan HC

Nupur Agrawal

10 Dec 2024 10:00 PM

Daughter Who Became Widowed/ Divorced After Death Of Govt Employee Parent Falls Outside “Family” Under Pension Rules: Rajasthan HC

Rajasthan High Court rejected a bunch of writ petitions filed by daughters claiming family pension pursuant to their respective parents' death who were government employees, on the basis of them attaining status of a widow or a divorcee, subsequent to their parents' demise.

The bench of Justice Dinesh Mehta ruled that the relevant date for determining family's right to receive family pension was the date of retirement or the date of death of the government servant, and accordingly, for a daughter to be eligible for father's pension, she must have a status of a widow or a divorcee on such a date. Her status subsequent to the father's death would not render her the right to claim family pension.

“since the Government servant had passed away on 20.09.2017 and on such fateful day, the petitioner was having a surviving matrimony and as she was obviously not a widowed daughter, she cannot be brought within the realm of definition of “family” defined under the Rule 66 of the Rules of 1996 by any stretch of statutory interpretation.”

The Court was hearing a bunch of writ petitions in this regard in which the case of Sarla Devi Acharya (“petitioner”) was taken as the lead case.

The Petitioner's father, who was a government employee, retired in 1982 and used to get family pension under the Rajasthan Civil Services (Pension) Rules, 1996 (“the Rules”) till he passed away in 2017. At that time, the petitioner was married to her husband, however, her husband also passed away in 2023.

After her husband's death, the petitioner filed an application claiming family pension under Rules 66 and 67 of the Rules, which was rejected. Against this decision, the writ petition was moved before the Court.

It was the case of the petitioner that Rules 66 and 67 included widowed daughter which entitled her to receive the family pension. Furthermore, it was also submitted that a clarification dated January 16, 2023, (“the Clarification”) was also issued by the Pension and Pensioners Welfare Department which clarified that even if the daughter became a widow after the government employee's death, she was entitled to the family pension.

On the contrary, the counsel for the respondents argued that since petitioner's mother had already passed away earlier, the family pension stopped immediately on the death of the father in 2017, and the petitioner could not claim her dependency on father and resulting revival of the pension because of subsequent death of her husband since she was married on the day of her father's death.

Furthermore, the counsel also submitted that the Clarification was contrary to the scheme of the Rules and therefore the latter would prevail. It was also pointed out that now, the Finance Department had also clarified that daughter of a government employee who became widow or divorcee after the employee's death could not claim family pension.

After hearing contentions from both sides, the Court framed the question to be answered as: “Whether a married daughter whose matrimonial ties are severed due to death of her husband or dissolution of marriage, that too on a date posterior to the death of the Government servant is entitled to pension under the Rules of 1996 or not?”

The Court opined that the relevant date to be considered for ascertaining family's right to family pension was the date of employee's retirement or death. It was held that in the present case the relevant date was the one in 2017 and if on that date, the employee had any widowed/ divorced daughter(s), she would have been entitled for the family pension. However, the petitioner's husband was alive in 2017 and passed away only in 2023 which brought her outside “family” as defined under the Rules.

“For a daughter to be eligible to earn pension under the Rules of 1996, she must have a status of widow or a divorcee' – her status subsequent to the death of the Government servant cannot clothe her with a right to claim family pension under the subject Rules.”

The Court further made a reference to the case of Union of India & Ors. Vs. Ratna Sarkar of the Calcutta High Court in which it was held that the legislative intent was never to include a daughter in the family pension, who was married at the time of the pensioner's death. Hence, a daughter who became widowed after the pensioner's demise, had no right to claim family pension.

Furthermore, the Court also rejected the Clarification relied upon by the petitioner, by making a reference to a division bench case of the Court, viz., Union of India & Ors. Vs. Smt. Hemlata Sharma & Anr. in which it was ruled that,

“By administrative circulars, a new class or category which otherwise was not included for the purposes of grant of family pension, could not be included as that would amount to supplanting the rules… None of the provisions contained in Rule 75 of the Rules of 1993 indicate that the rule ever sought to include a divorced/widowed daughter, who was otherwise leading a married life on the date of death of her father, the retired employee or even on the date of death of her widowed mother, who was getting family pension.”

In this light, the Court held that since the Clarification issued was completely contrary to the scheme of the Rules, it could not be given any credence.

Accordingly, the writ petitions were dismissed.

Title: Sarla Devi Acharya v the District and Sessions judge & Ors. and other connected petitions

Citation: 2024 LiveLaw (Raj) 391