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Saturday, September 3, 2022

GUV RETURNS SIDHA MEDICAL UNIERSITY BILL

Friday, September 2, 2022

B.Ed. Not "Bachelor Degree" Of Graduation: Gujarat High Court

2.9.2022

The Gujarat High Court has held that a B.Ed. Degree, i.e., Bachelor of Education, is not a Bachelor Degree of graduation since the said course, like 3-yrs-LLB course, can be perused only after one has graduated in any of the branches of arts or science.

In the same breath, the Court held that persons possessing a B.Ed. degree are over-qualified for positions having minimum prescribed qualification of Graduation and thus, rejection of their candidature for having more qualifications cannot be held to be bad in law.

The Court while relying on Chief Manger, Punjab National Bank & Anr. v. Anit Kumar Das thus concluded that the Petitioner-candidates were rightly not considered for the posts of Assistant Security Inspector, Traffic Inspector and Store Keeper, since they were over-qualified.

"Petitioners are having higher qualification than the minimum prescribed qualification as per the advertisement and there is no provision or rule which prescribes that the higher qualifications which presuppose the acquisition of the lower qualification prescribed for the post shall also be sufficient for the post."

Two of the Petitioners were holding a B.Ed. degree but this was deemed not equivalent to the Bachelor's degree required for the posts. Another Petitioner's candidature was rejected basis wrong calculation of CGPA. Finally, one of the Petitioner was rejected on the ground that he was having a higher qualification than the minimum qualification.

The Petitioners submitted that the degree of B.Ed. was equivalent to the Graduate degree and it could not be termed as a Post Graduate Degree. They also submitted that the words 'Graduate' and 'Bachelor' were synonymous as per dictionaries which implied a person with a first University degree. Therefore, they were eligible candidates for the post.

However, this was opposed by the Respondent Corporation by stating that B.Ed. is not a Graduation course and it is offered for those interested in teaching only after achieving BA or BSc. The Respondent also insisted that it is for the employer to determine the relevancy and suitability of the qualifications of the post, keeping in view the institution and its requirements.

Affirming that for B.Ed. one has to possess a Bachelors in Arts or Science, the High Court explained that it cannot be considered a Bachelor Degree of Graduation as such. In also noted that in Anit Kumar Das, the Apex Court had not considered a person possessing higher qualification as eligible for the post of peon. In this light, Justice Karia reiterated:

"Exigencies of administration, it is trite law, fall within the domain of administrative decision making. The State as a public employer may well take into account social perspectives that require the creation of job opportunities across the societal structure. All these are essentially matters of policy. Judicial review must tread warily."

Case No.: C/SCA/16694/2017

Case Title: BRIJESHKUMAR DASHARATHLAL PATEL v/s CHAIRMAN & 31 others

Maternity Act' Doesn't Provide For Time Difference Between 1st & 2nd Child For Grant Of Maternity Benefits: Allahabad HC Grants Relief To Woman

Sparsh Upadhyay

2 Sept 2022 11:12 AM

The Allahabad High Court has observed that the Maternity Benefits Act, 1961 Act does not contain any such stipulation regarding the time difference between the first and second child for the grant of maternity benefits. A

With this, the Court granted relief to an Inter College lecturer whose application for maternity leave had been rejected by placing reliance on Rule 153(1) of the Financial Handbook by contending that the same contains a restriction that the second maternity leave cannot be granted where there is a difference of less than two years between the end of the first maternity leave and grant of second maternity leave.

The case in brief

Essentially, her maternity leave application had been rejected on the ground that she had previously availed maternity leave which ended on May 18, 2018, which was a period less than 2 years, and hence, she was not entitled to the maternity leave as per Rule 153(1) of the Financial Handbook.

Before the Court, she argued that she had applied for maternity leave for a period of 174 days from November 26, 2017, to May 18, 2018, which was duly sanctioned and the petitioner gave birth to a baby boy on January 29, 2018, but unfortunately, the newborn child passed away due to cardiorespiratory just a day after his birth.

The petitioner again conceived for the second time and applied for maternity leave for a period of 24 weeks from November 18, 2018 to May 16, 2019, which had been rejected by means of the impugned order.

It was argued by her counsel that Rule 153(1) of the Financial Handbook runs contrary to the mandatory provisions of the 1961 Act, which doesn't stipulate any mandatory lapse of time between the first and second child so as to become eligible for the grant of maternity benefit.

In view of this, considering the provisions of Section 27 of the 1961 Act, the Counsel contended, that Rule 153(1) of the Financial Handbook Vol. II to IX would have to be read down and it is the provisions of the 1961 Act that would prevail.

On the other hand, the Counsel for the state argued that the impugned order is in conformity with the provisions of Rule 153(1) of the Financial Handbook Volume II to IV where a restriction has been placed for grant of maternity benefits prior to 2 years having lapsed from the date of expiry of the last maternity leave granted under the Rule.

Court's observations

At the outset, the bench of Justice Alok Mathur observed that a perusal of the provisions of the 1961 Act indicate that a woman would be entitled to give notice in writing for grant of maternity benefit, and on receipt of the notice, the employer shall permit such a woman to absent herself from the establishment during the period for which she receives the maternity benefit.

"The 1961 Act does not contain any such stipulation of the time difference between the grant of maternity benefit for the first and second child as stipulated in Rule 153 (1) of the Financial Handbook," the Court observed as it stressed that the 1961 Act does not contain any such stipulation.

Accordingly, the Court held that the respondents patently erred in placing reliance on Rule 153(1) of the Financial Handbook in rejecting the application of the petitioner for grant of maternity leave.

"The Maternity Benefit Act 1961 has been enacted by the Parliament on a subject which finds mention in entry 24 of list III, and it was totally within its competence to make such an enactment. Even if the state legislature were to make such a law, overriding the provisions contained in the Maternity Benefit Act then the said act would be reserved for accent of the President and would be enforceable only after obtaining such an accent as provided in article 254(2) of the Constitution of India," the Court remarked.

Consequently, the Court held that once the provisions of the Maternity Benefit Act, 1961 has been adopted by the State of U.P. then the said Act of 1961 would apply with full force irrespective of the provisions contained in the Financial Handbook which is merely an executive instruction and would, in any case, be subsidiary to the legislation made by the Parliament.

"The provision of Financial Handbook are preConstitutional executive instructions and would be subsidiary to the Act of Parliament and in case of any inconsistency, the statutoy enactment framed by the Parliament would prevail and hence the provisions of Maternity Benefits Act, 1961 would prevail over the provisions of Financial Handbook and, therefore, provision of Rule 153 (1) of the Financial Handbook Volume I to IV are read down with regard to admissibility of leave to a woman with regard to second pregnancy which would be governed by Maternity Benefits Act, 1961 and not Rule 153 (1) of the Financila Handbook Volume II to IV," the Court held as it the writ petition is allowed and the respondents were directed to grant maternity benefit to the petitioner in terms of the Maternity Benefit Act 1961.

Case title - Satakshi Mishra v. State Of U.P. Thru. Prin. Secy. Secondary Edu. Dept. Lucknow And 4 Others [WRIT - A No. - 5114 of 2022]

Case Citation: 2022 LiveLaw (AB) 410