Dr. (Major) Meeta Sahai v. State of Bihar; 2019 SCC OnLine SC 1632, Hon’ble Supreme Court has held as under: “However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process.” Mohan Lal Yaduwanshi v. State of U.P, Service Bench No. – 18370 of 2019, decided on January 13, 2020
Tag Archives: Government Employee
Right To Be Considered For Promotion and Interest To Be Considered For Promotion – Distinction Between
A distinction between right to be considered for promotion and an interest to be considered for promotion has always been maintained. Seniority is a facet of interest. The rules prescribe the method of recruitment/selection. Seniority is governed by the rules existing as on the date of consideration for promotion. Seniority is required to be worked out according to the existing rules. No one has a vested right to promotion or seniority. But an officer has an interest to seniority acquired by working out the rules. The seniority should be taken away only by operation of valid law. Right to be considered for promotion is a rule prescribed by conditions of service. A rule which affects chances of promotion of a person relates to conditions of service. The rule/provision in an Act merely affecting the chances of promotion would not be regarded as varying the conditions of service. A rule which merely affects the chances of promotion does not amount to change in the conditions of service. However, once a declaration of law, on the basis of existing rules, is made by a Constitutional Court and a mandamus is issued or direction given for its enforcement by preparing the seniority list, operation of the declaration of law and the mandamus and directions issued by the Court is the result of the declaration of law and not the operation of the rules per se. Pankaj Singh v. State of U.P., 2018 (3) AWC 2380.
When a departmental enquiry is conducted against the Government servant, it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The Inquiry Officer has to be totally unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a Government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.
In Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570, it was held as under:
“Indisputably, a departmental proceeding is a quasi judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.” Ram Prakash Pal v. Chairman, 2018 (4) AWC 3952.
The Hon’ble Supreme Court in the matter of Union of India v. Dr. Sudha Salhan, (1998) 3 SCC 394, while agreeing to the decision of Union of India v. K.V. Jankiraman, (1991) 4 SCC 109, has held that if on the date on which the name of the person is considered by the Departmental Promotion Committee for promotion to the higher post, such person is neither under suspension nor has any departmental proceedings been initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the sealed cover procedure cannot be adopted. The recommendation of the Departmental Promotion Committee can be placed in a sealed cover only if on the date of consideration of name for promotion the departmental proceedings had been initiated or were pending or on its conclusion, final order had not been passed by the appropriate authority. Gyan Prakash Pandey v. State of U.P., 2018 (4) AWC 3859.
In U.P. Rajkiya Nirman Nigam v. P.K. Bhatnagar, (2007) 14 SCC 498, it was held that the mere fact that the employee has spent several years in service in the Department where he has been sent on deputation, will not alter the position from that of a deputationist to a regular employee. Of course, it is well settled that the employee who has been sent on deputation, has no right to claim absorption. Raja Singh v. State of U.P., (2019) 6 SCC 528.
In Deputy Commissioner v. J. Hussain, (2013) 10 SCC 106, it was held that power of review of punishment ordinarily is not availed by a Court or Tribunal. Court while undertaking judicial review of matter is not supposed to substitute its own opinion on reappraisal of facts. In exercise of power of judicial review, court can interfere with the punishment imposed only when it is found to be totally irrational or is outrageous in defiance of logic. It was further observed “this limited scope of judicial review is permissible and interference is available only when punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities.” It further observed that it is only when punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. Yogendra Kumar v. Union of India, 2018 (5) AWC 4858.
In Salahuddin Ansari v. State of U.P., 2008 (3) ESC 1667, it was held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order or punishment. It was held as under:
“Non-holding of oral inquiry in such a case, is a serious matter and goes to the root of the case. In Subhash Chandra Sharma v. Managing Director, 2000 (1) UPLBEC 541, while considering the question as to whether holding of an inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee.” Mohan Law Garg v. State of U.P., (2019) 2 UPLBEC 1184.
An Office of profit has two essential ingredients. Firstly, it must yield a true pecuniary benefit based on a master and servant relationship between the Government or any statutory or local body of the State and the person concerned. Secondly, the executive authority of the person for which the pecuniary benefit against a position is derived must owe its existence to the office held by him. An employment of which the position goes with the termination of contract and for which there is no protection of tenure against any disciplinary measure is a pure contract of service, therefore, any incentive to meet out of pocket expenses like payment of honorarium cannot be classified to be an office of profit. Neelam Nigam v. State of U.P., 2020 (1) AWC 849.
Clause (1) of Article 311 of the Constitution of India states that persons employed in civil services or posts under the Union or the States or members of the All India Service shall not be dismissed, removed or reduced in rank by an authority subordinate to that by which he/she was appointed. Clause (2) provides that such a person could be dismissed or removed or reduced in rank only after an inquiry in which he has been informed of the charges against him and after being afforded a reasonable opportunity of being heard in respect of those charges. The second proviso incorporates exceptions when the need for holding an inquiry under clause (2) can be dispensed with. Clause (b) of the Second Proviso to Article 311(2) can be invoked to impose a punishment of dismissal, removal or reduction in rank on the satisfaction, to be recorded in writing, that it is not reasonably practicable to conduct an inquiry before imposing the punishment. The Hon’ble Apex Court in Jaswant Singh v. State of Punjab, (1991)1 SCC 362, relying on an earlier decision in Union of India v. Tulsiram Patel, (1985) 3 SCC 398, has affirmatively held that the obligation of the competent authority to record reasons when passing an order under clause (b) to the second proviso to Article 311(2) is mandatory, and it was inter alia observed:
“It was incumbent on the respondents to disclose to the court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by Respondent No. 3 in the impugned order. Clause (b) of the Second Proviso to Article 311(2) can be invoked only when the authority is satisfied from the material placed before that it is not reasonable practicable to hold a departmental enquiry. It was observed as under: “A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department’s case against the Government servant is weak and must fail.” Hari Niwas Gupta v. State of Bihar, (2020) 3 SCC 153.