RESERVATIONS IN PROMOTIONS

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RESERVATIONS IN PROMOTIONS

Why in News?

The Central Government has demanded for a review of 2018 Supreme Court Verdict in Jarnail Singh vs Lachhmi Gupta Case, related to reservations in promotions for SC/ST about creamy layer in Promotions.

RESERVATIONS IN PROMOTIONS

Waiting for the verdict | Reservations in promotions for SC/ST

Background

Nagaraj vs Union of India Case (2006)

The Supreme Court upheld the constitutional validity of reservations for SCs and STs to include promotions with three conditions:

  1. Quantifiable data on the backwardness of Scheduled Castes (SC) and Scheduled Tribes (ST)
  2. The facts about their inadequate representation
  3. The overall administrative efficiency

What is Creamy Layer

  • The concept has its genesis in the Indira Sawhney Case (1992). Supreme Court asked the Government to define the criteria by fixation of income, property or status.
  • Currently creamy layer criteria is applicable to Other backward classes (OBCs) in reservation.
  • At present, Group A and Group B officers of both Central and State Government, Employees of Armed Forces and PSUs along with people earning more than 8 lakh per annum come under the purview of Creamy layer.

Center’s Contention about reservations in promotions for SC/ST:

The Center approached supreme Court that the verdict in the M Nagraj case put unnecessary conditions in granting quota benefits, as it affects the reservations in promotions for SC/ST.  Thus, In Jarnail Singh vs Lachhmi Gupta Case (2018) Supreme Court allowed for grant of quota for promotions in the government jobs to SCs and STs without the need to “collect quantifiable data”. The court also asked the government to examine the possibility of introducing creamy layer for Scheduled Castes (SCs) and Scheduled Tribes (STs) by saying that if some sections bag all the coveted jobs, it will leave the rest of the class as backward as they always were.

  • It declined the demand to refer the case to a 7 judge bench to reconsider its 2006 Nagaraj judgement.
  • Now, the union government has urged the court to reconsider the ruling and refer the issue to a seven-judge Bench.

Arguments for applying the Creamy Layer concept to SCs/STs

  • Improved income and status: The creamy layer within the SCs and STs has improved socio-economic mobility and by that virtue does not face discrimination of similar intensity.
  • Article 335: It states that Affirmative action should be subject to the overall efficiency of Public Administration. Reservation in promotions may affect the merit-based culture of the organization.
  • Prioritizing most marginalized: Supreme Court in Jarnail Singh Case Judgement noted that the benefits, by and large are snatched away by the top creamy layer of the backward caste or class, keeping the weakest among the weak always weak and leaving the fortunate layers to consume the whole cake.

Arguments for not applying the Creamy Layer concept to SCs/STs

  • Discrimination within service: It is argued that there is widespread discrimination within services. For example, there are about 12,000 cases lying with the SC/ST Commission, complaining about discrimination in service.
  • Not Anti-poverty programme: Reservation for Dalits is not to undo economic backwardness but as a remedy for societal discrimination based on untouchability. Thus, it may not possess a direct correlation with economic status.
  • Difference between OBCs and SCs: OBCs don’t face the kind and extent of discrimination faced by SCs. Generally, if OBCs manage to cross a certain economic threshold, the extent of social discrimination reduces substantially.

Way Forward

  • Consultative Approach: Reservation is a very sensitive topic, thus any decision on it should be in consultation with all the stakeholders.
  • Strengthening Other tools: like encouraging Dalit Entrepreneurship, providing loans (E.g. Stand-up India Scheme), Increasing awareness etc. can also indirectly improve the Socio-Economic mobility of Dalits.

 

Upper cap of 3 months for suspension period for govt. employees if not given charge sheet

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In a remarkable judgment in service law jurisprudence, a two judge bench of the Supreme Court has held that a government employee cannot be kept suspended for more than three months if not formally informed about the charges. However, the charges under departmental proceedings may continue even after revocation or reinstatement to the job.

Based on the principle of human dignity and the right to speedy trial, the landmark verdict will affect a huge bunch of government employees across the country, many of whom are under suspension for years pending departmental proceedings. The praiseworthy judgment also impliedly takes care of vexatious cases filed against govt. employees leading to indefinite suspension in absence of an upper cap. This also will reduce bureaucratic discretionary powers under various departments.

It is settled law that suspension cannot be treated as a punishment. The sole object of suspending an employee is to disallow his employment temporarily till proven innocent for a fair probe. However, practically, years pass by without any settlement. “Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration,” the bench headed by Justice Vikramjit Sen said. However, if the charge sheet or memorandum of charges was served within this period of three months, the suspension could be extended.

“If it (suspension) is for an indeterminate period or if its renewal is not based on sound reasoning…, this would render it punitive in nature,” the court said.

It agreed with the petitioner’s averment that a suspension order can’t continue for an unreasonably long period. Protracted periods of suspension had become the norm and not the exception that they ought to be, the court said. It drew a parallel with criminal investigation wherein a person accused of heinous crime is released from jail after the expiry of 90 days if police fails to file the charge sheet.

The suspended persons suffers even before being charged and “his torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination”. “Much too often this has now become an accompaniment to retirement,” the court said, setting aside a direction of the central vigilance commission that required departmental proceedings to be kept in abeyance pending a criminal investigation. The government, however, will be free to transfer the officer concerned to any department in any of its offices to ensure the employee did not misuse contacts for obstructing the probe, the court said.

The order came on a petition filed by defence estate officer Ajay Kumar Choudhary, who was suspended in September 2011 for allegedly issuing wrong no-objection certificates for the use of a four-acre land parcel in Kashmir. After failing to get relief from the Delhi high court, Choudhary had moved the top court in 2013. Since a charge sheet had already been served on Choudhary, these directions would not apply to his case, the court said.

Departmental Inquiry is no Ground to Deny Pension or Subsistence Allowance to Employee

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Case name: UCO Bank & Ors. v. Rajendra Shankar Shukla

In the case, the Supreme Court made a scathing attack on the Appellant Bank in view of illegalities in departmental inquiry against the Respondent Employee including the fact that the Respondent employee was denied even the subsistence allowance during the pendency of the inquiry against him.

In the case, the Bench considered the question of law on access to justice in a departmental inquiry. The Court opined that the Respondent was not given a fair opportunity to defend himself by denying him financial resources.

The Apex Court in the case held that an employee is entitled to subsistence allowance during an inquiry pending against him or her but if that employee is starved of finances by zero payment, it would be unreasonable to expect the employee to meaningfully participate in a departmental inquiry. Access to justice is a valuable right available to every person, even to a criminal, and indeed free legal representation is provided even to a criminal. In the case of a departmental inquiry, the delinquent is at best guilty of a misconduct but that is no ground to deny access to pension or subsistence allowance.

 

Compassionate Appointment cannot be claimed as a matter of right

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Case name: Rajasthan State road Transport Corporation and ors. v. Revat Singh

In this case, the Supreme Court while relying on its decisions in the case of I.G.(Karmik) and others vs. Prahalad Mani Tripathi and Steel Authority of India Limited v. Madhusudan Das, held that compassionate appointment cannot be granted to a post for which the candidate is ineligible. It was further held in said case that even though higher post was applied for on Page 5 Page 5 of 8 compassionate ground, when a lower post offered considering qualification and eligibility as per rules was accepted by the candidate, he cannot claim higher post.

The Court also noted that the appointment on compassionate ground cannot be claimed as a matter of right. It must be provided for in the rules. The criteria laid down i.e. the death of the sole bread earner of the family, must be established. It is meant to provide for a minimum relief. When such contentions are raised, the constitutional philosophy of equality behind making such a scheme be taken into consideration. Articles 14 and 16 of the Constitution of India mandate that all eligible candidates should be considered for appointment in the posts which have fallen vacant. Appointment on compassionate ground offered to a dependent of a deceased employee is an exception to the said rule. It is a concession, not a right. (SBI v. Anju Jain, (2008) 8 SCC 475)

The entire case can be accessed here

SC’s Guidelines for Employer in case of Suppression of Information by Employee

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Case name: Avtar Singh v. Union of India

In this case the Court considered the cleavage of opinion in various decisions on the question of suppression of information or submitting false information in the verification form as to the question of having been criminally prosecuted, arrested or as to pendency of a criminal case.

The Apex Court in the case laid down the following guidelines for the employer and stated that any of the following recourse appropriate to the case may be adopted: –

  • In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
  • Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
  • If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
  • In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
  • In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
  • In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
  • If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
  • In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
  • For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
  • Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.

Jobs Secured on the basis of Fake Caste Certificates to be Rendered Invalid

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Case name: Managing Director FCI and Ors. v. Jagdish Balram Bahira and Ors.

Recently, the Supreme Court was confronted with a batch of petitions involving individuals who sought the benefit of public employment on the basis of a claim to belong to a beneficiary group which upon investigation was found to be invalid. In the case  Supreme Court has rendered an elaborate explanation of usurpation of constitutional benefits by persons who do not genuinely belong to beneficiary groups.

The crux of Apex Court’s ruling in the instant case was that when a person who does not belong to a caste, tribe or class for whom the reservation is meant, seeks to pass off as its member, such a stratagem constitutes a fraud on the Constitution. Public employment is a significant source of social mobility. Access to education opens the doors to secure futures. As a matter of principle, in the exercise of its constitutional jurisdiction, the court must weigh against an interpretation which will protect unjust claims over the just, fraud over legality and expediency over principle

The Court broadly discussed the following issues in the case:

Whether a person who has secured the benefit of public employment or admission to an educational institution on a reserved quota is entitled to retain the benefits obtained despite the invalidation of the claim to belong to the tribe or caste?

Whether there should be a retrospective application of withdrawal of benefits secured on the basis of a caste claim which has been found to be false?

Whether the dishonest intent is a requisite for withdrawal of benefits secured on the basis of a caste claim which has been found to be false?

The Court at length discussed the proposition as laid down by the Supreme Court in the cases of Kavita Vasant Solunke vs. State of Maharashtra and Shalini Gajananrao Dalal v. New English High School Association. In these case, the Court ruled that candidates who honestly and correctly claimed to belong to a particular Scheduled Caste/Scheduled Tribe but were later on found by the relevant authority not to fall within the particular group envisaged for protected treatment would not be negated of the benefits already enjoyed by them and would continue in service. However, such candidates would be disentitled to claim any further or continuing benefit on the predication of belonging to the said Scheduled Caste/Scheduled Tribe.

The Apex Court in the instant case overruled the aforesaid finding of the Court and stated that the principles as settled in Kavita Solunke and Shalini case were not correct and might lead to serious consequences.

The entire case can be accessed here.

In Absence of Disciplinary Authority, Charge Sheet becomes Non est

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Case name: Union of India v. B.V. Gopinath, (2014) 1 SCC 351

In this case, the Supreme Court in view of the facts and circumstances of the case, clearly stated that in absence of approval of disciplinary authority, charge memo/charge-sheet becomes non estand hence is liable to be quashed.

It was further held that all decisions regarding approval, modification/amendment, dropping of charge memo have to be taken by disciplinary authority for initiation of disciplinary proceedings. Hence, disciplinary authority alone is required to exercise that power, otherwise, it would go against established maxim delegatus non potest delegare.

The entire case can be accessed here.

Non-Supply of Inquiry Report to the delinquent employee in disciplinary proceedings

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Case name: Uttarakhand Transport v. Sukhveer Singh

In this case, the Supreme Court has primarily ruled on the legal principle of Non-Supply of Inquiry Report to the delinquent employee in disciplinary proceedings and the consequences that follow when the delinquent employee has not been prejudiced by non-supply of inquiry report prior to the issuance of show cause notice.

Key observations by the Supreme Court are enumerated below:

  • That Non-supply of Inquiry Report does not automatically results in Re-instatement of Delinquent Employee- When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. 
  • That acts of corruption/misappropriation cannot be condoned, even in cases where the amount involved is meagre.

The entire case can be accessed here.

Promotion available during Claimant’s period of extension of service can’t be granted to the Claimant

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Case name: H.M. Singh v. Union of India, (2014) 3 SCC 670

This case dealt with service Law Promotion Entitlement to promotion during period of extension of service. In the case, the appellant’s claim for promotion to post of Lt. General was rejected on ground that he was on extension of service.

In view of the aforesaid, the Supreme Court held that in situations wherein an officer attains the age of retirement without there being a vacancy for his consideration to a higher rank, even though he is eligible for the same, such an officer who is granted extension in service, cannot claim consideration for promotion, against a vacancy which has become available during the period of his extension in service.

The entire case can be accessed here.

Departmental Enquiry on Vague Charges shall be Vitiated

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Case name- Shri Anant R. Kulkarni v. Y.P. Education Society & Ors.

In this case, the Supreme Court made some key observations pertaining to disciplinary proceedings which enumerated below:

That once court sets aside an order of punishment on the ground that enquiry was not properly conducted, Court should not preclude employer from holding the enquiry in accordance with law. It must remit the case to disciplinary authority, to conduct enquiry from the point it stood vitiated, and to conclude the same in accordance with law. However, resorting to such a course depends upon gravity of delinquency involved.

Court/tribunal should not generally set aside departmental enquiry, and quash charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. While setting aside a departmental enquiry, the Court must take into consideration all relevant facts, and balance and weigh the same, so as to determine, if it is in fact in the interest of clean and honest administration that proceedings are allowed to be terminated, only on the ground of a delay in their conclusion.

Departmental Enquiry on vague and unspecified charges – In this context, the Supreme Court held that a delinquent shall not be served a charge sheet, without providing him, a clear, specific and definite description of charge against him.

Departmental Enquiry against retired employee– In this case, the Court also enumerated the circumstances when departmental enquiry could be conducted against retired employee. The Court held that relevant rules governing the service conditions of an employee are determining factors as to whether and in what manner domestic enquiry can be held against an employee who stood retired after reaching the age of superannuation. Generally, if the enquiry has been initiated while the delinquent employee was in service, it would continue even after his retirement, but nature of punishment would change. The punishment of dismissal/removal from service would not be imposed.

The entire case can be accessed here