IMPORTANT JUDGEMENT- OFFICIAL RETIRED ON 30th JUNE IS ELIGIBLE FOR INCREMENT DUE ON 1st JULY NOTIONALLY FOR PENSIONARY BENEFITS IN THE HIGH COURT OF JUDICATURE AT MADRAS

IMPORTANT JUDGEMENT- OFFICIAL RETIRED ON 30th JUNE IS ELIGIBLE FOR INCREMENT DUE ON 1st JULY NOTIONALLY FOR PENSIONARY BENEFITS

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 15.09.2017
CORAM
THE HON’BLE MR.JUSTICE HULUVADI G.RAMESH
AND
THE HON’BLE MR.JUSTICE RMT.TEEKAA RAMAN
W.P.No.15732 of 2017

P.Ayyamperumal …

Petitioner

-vs-

1.The Registrar,
Central Administrative Tribunal,
Madras Bench,
High Court Complex,
Chennai-600 105.

2.Union of Indirep.by
the Chairman, CBEC,
North Block,
New Delhi-110 001.

3.Union of India rep.by
Department of Personnel & Training
New Delhi.

4.The Director of General (Inspection),
Customs & Central Excise,
"D" Block, I.P.Bhawan, I.P.Estate,
New Delhi-110 002.

.. Respondents

Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus calling for the records of the first respondent in O.A./310/00917/2015 dated 21.03.2017 and quash the same and consequently direct the fourth respondent to treat the retirement date of the petitioner as on 01.07.2013 and grant all the consequential benefits including the pensionary benefits.

For Petitioner :: Mr.P.Ayyamperumal,
Petitioner-in-Person
For Respondents :: Mr.K.Mohanamurali,

ORDER

(Order of the Court was made by
HULUVADI G.RAMESH, J.)

This writ petition has been filed to quash the order passed by the first respondent-Tribunal in O.A./310/00917/2015 dated 21.03.2017 and to consequently direct the fourth respondent to treat the retirement date of the petitioner as 01.07.2013 and grant him all the consequential benefits including the pensionary benefits.

2.The case of the petitioner is that he joined the Indian Revenue Service in Customs and Excise Department in the year 1982 and retired as Additional Director General, Chennai on 30.06.2013 on attaining the age of superannuation. After the Sixth Pay Commission, the Central Government fixed 1st July as the date of increment for all employees by amending Rule 10 of the Central Civil Services (Revised Pay) Rules, 2008. In view of the said amendment, the petitioner was denied the last increment, though he completed a full one year in service, ie., from 01.07.2012 to 30.06.2013. Hence, the petitioner filed the original application in O.A.No.310/00917/2015 before the Central Administrative Tribunal, Madras Bench, and by order dated 21.03.2017, the Tribunal rejected the claim of the petitioner by taking a view that an incumbent is only entitled to increment on 1st July if he continued in service on that day. Since the petitioner was no longer in service on 1st July 2013, he was denied the relief. Challenging the order passed by the Tribunal, the present writ petition is filed.

3.The petitioner, appearing as party-in-person, has referred to the judgment passed by this Court in State of Tamil Nadu, rep.by its Secretary to Government, Finance Department and others v.M.Balasubramaniam, reported in CDJ 2012 MHC 6525, wherein the appeal filed by the State challenging the order passed in the writ petition entitling the employee who was similarly placed like that of the petitioner, the benefit of increment on the ground that he has completed one full year of service from 01.04.2002 to 31.03.2003, was rejected. Referring to that judgment, the petitioner has submitted that the said benefit has to be extended to him. He further submitted that even though the above decision squarely covers his case, no mention has been made by the Central Administrative Tribunal as to how that decision is not applicable to him. With regard to the said issue, the petitioner has also referred to the order passed by the Government of Tamil Nadu in G.O.Ms.No.311, Finance (CMPC) Department, dated 31.12.2014, and submitted that in the said G.O., it has been mentioned that the Pay Grievance Redressal Cell has recommended that when the date of increment of a Government servant falls due on the day following superannuation on completion of one full year of service, such service may be considered for the benefit of notional increment purely for the purpose of pensionary benefits and not for any other purpose. Stating so, the petitioner prayed for allowing this writ petition.

4.Heard the learned Senior Panel Counsel appearing for the respondents 2 to 4 on the submissions made by the petitioner and perused the materials available on record.

5.The petitioner retired as Additional Director General, Chennai on 30.06.2013 on attaining the age of superannuation. After the Sixth Pay Commission, the Central Government fixed 1st July as the date of increment for all employees by amending Rule 10 of the Central Civil Services (Revised Pay)
Rules, 2008. In view of the said amendment, the petitioner was denied the last increment, though he completed a full one year in service, ie., from 01.07.2012 to 30.06.2013. Hence,
the petitioner filed the original application in O.A.No.310/00917/2015 before the Central Administrative Tribunal, Madras Bench, and the same was rejected on the ground that an incumbent is only entitled to increment on 1st July if he continued in service on that day.

6.In the case on hand, the petitioner got retired on 30.06.2013. As per the Central Civil Services (Revised Pay) Rules, 2008, the increment has to be given only on 01.07.2013, but he had been superannuated on 30.06.2013 itself. The judgment referred to by the petitioner in State of Tamil Nadu, rep.by its Secretary to Government, Finance Department and others v. M.Balasubramaniam, reported in CDJ 2012 MHC 6525, was passed under similar circumstances on 20.09.2012, wherein this Court confirmed the order passed in W.P.No.8440 of 2011 allowing the writ petition filed by the employee, by observing that the employee had completed one full year of service from 01.04.2002 to 31.03.2003, which entitled him to the benefit of increment which accrued to him during that period.

7.The petitioner herein had completed one full year service as on 30.06.2013, but the increment fell due on 01.07.2013, on which date he was not in service. In view of the above judgment of this Court, naturally he has to be treated as having completed one full year of service, though the date of increment falls on the next day of his retirement. Applying the said judgment to the present case, the writ petition is allowed and the impugned order passed by the first respondent-Tribunal dated 21.03.2017 is quashed. The petitioner shall be given one notional increment for the period from 01.07.2012 to 30.06.2013, as he has completed one full year of service, though his increment fell on 01.07.2013, for the purpose of pensionary benefits and not for any other purpose. No costs.

Index : Yes/No
Internet : Yes/No

(H.G.R.,J.) (T.K.R.,J.)

15.09.2017

KM

To

1.The Registrar,
Central Administrative Tribunal,
Madras Bench, High Court Complex,
Chennai-600 105.

2.The Chairman, CBEC,
Union of India,
North Block,
New Delhi-110 001.

3.Department of Personnel & Training,
Union of India,
New Delhi.

4.The Director of General (Inspection),
Customs & Central Excise,
"D" Block, I.P.Bhawan, I.P.Estate,
New Delhi-110 002.

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Government can not accommodate employee in lower pay scale because of disability: High Court

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The Allahabad High Court has held that the government cannot accommodate an employee in a post with a lower pay scale just because he or she acquired some disability during service and became unfit for the current post.

A bench comprising justices Bharati Sapru and Siddharth passed the order while dismissing a petition filed by the Ministry of Railways.

The court directed the ministry to pay S Q Ahmed (accommodated on a post with lower pay scale because he acquired some disability) his dues according to higher pay grade with 7 per cent interest from the due date.

It also imposed a cost of Rs 50,000 on railways for not giving its employee his legitimate dues and for dragging him into litigation for no fault on his part.

In its petition, the Centre challenged an order passed by the Central Administrative Tribunal directing the Ministry of Railways to pay Ahmad his salary and other dues according to his original pay scale.
The tribunal had held that Ahmad was discriminated by the ministry and was wrongly accommodated in the post of lower pay scale on the ground that he became medically unfit for the job he was doing then.

The Railways contention was that if an employee becomes medically unfit he is only entitled for alternative employment in such category under which he is found fit, on the basis of available vacancies.

Therefore, Ahmad was appointed on a post according to his fitness and vacancy and there was nothing wrong in his appointment at a lower pay scale.

However, Ahmads counsel relied on the master circular of the railways ministry which says that during absorption of medically unfit employees, in alternative employment, railways should ensure that the interest of the staff should not be adversely affected as far as possible.

The bench was of the view that such a reduction in pay scale of an employee is discriminatory and in violation of section 47 of The Persons With Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995.

The section provides that no establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service and in case, an employee, after acquiring disability is not suitable for the post he was holding, he could be shifted to some other post with the same pay scale and service benefits.

The bench while dismissing the petition observed, "It must be remembered that a person does not acquire or suffer disability by choice.

"An employee, who acquires disability during his service, is sought to be protected. Such employee, acquiring disability, if not protected, would not only suffer himself, but possibly all those who depend on him would also suffer."

PTI

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Mumbai: The Bombay High Court today asked the RBI to consider the issue of payment of salaries to aided school teachers since it is disbursed through district cooperative banks which have been prohibited from depositing and exchanging old currency notes.

The Mumbai, Solapur, Nashik and Pune District Central Cooperative Banks had approached the high court challenging the RBI circular of November 14, restricting them from exchanging or depositing old currency notes of Rs 500 and Rs 1,000, which were declared as illegal tender under the government’s demonetisation move on November 8.

Solapur co-operative bank counsel V M Thorat today informed the court that the bank receives around Rs 95 crore from the state government for salaries of teachers in aided schools, but due to the circular the bank is not able to disburse the amount.

A division bench of Justices A S Oka and Anuja Prabhudessai asked the Reserve Bank to consider the issue.

"RBI needs to consider this issue. We cannot take this matter up on merits as the Supreme Court is already seized of the main contentions raised in the petitions, but this particular issue about teachers’ salaries can be looked into," Justice Oka said.

"It is common knowledge that teachers of aided schools get their salaries from cooperative banks. We want to know how teachers will get their salaries now," the court said.

Thorat informed the bench today that the banks have filed application in the apex court seeking clarification on whether the high court can hear the matter.

"The application along with the transfer petition filed by the Union government seeking for all petitions filed on the demonetisation issue to be heard by SC itself is posted for hearing on December 9," the counsel said.

The high court then adjourned the cooperative banks petitions to December 14.

PTI

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Maternity leave is right of women employees, government even twins in first delivery: High court

Maternity leave is right of women employees, government even twins in first delivery: High court

Madurai: Ruling that maternity leave is given for protection of the health of women government employees, the Madras High court today stayed the order of Joint Director of School Education (personnel) for recovering over Rs two lakh from the salary of a teacher who took 179 days maternity leave for her second delivery.

Maternity leave is a right of women government employees, even they had delivered twins in the first delivery.

Maternity leave is a right of women government employees, even they had delivered twins in the first delivery.

The woman had delivered a twin in the first delivery.

Justice S Vaidyanathan of the High Court’s Madurai bench, said “it will not be correct to take into account the number of children one delivers during the first delivery to decide whether the maternity leave should be extended ignoring the health of the woman.”

“The intention of the maternity leave is to afford protection to the woman during the second delivery, it is not based on the number of children she delivers during the two deliveries,” the judge saidi in his interim order after hearing the petition filed by T Priyadarshini.

The judge said “it is not in dispute that the petitioner had two children. But it is in the first delivery, she gave birth to twins, and hence twin born in the first delivery cannot be put against the petitioner to deprive the second maternity leave.”

The petitioner submitted that she took her first maternity leave in 2011 for 180 days when she delivered a boy and a girl.

Then in 2014, she applied for maternity leave and it was granted. But the Joint Director of School education had said having two surviving children, she was not eligible to apply for second maternity leave and directed the chief education officer to consider the medical leave as loss of pay and recover Rs.2,56,112 from her and remit the money in the treasury immediately.

Inputs with PTI

via tkbsen.in

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THE CONSTITUTION (ONE HUNDRED AND TWENTY-FIRST AMENDMENT) BILL, 2014

THE CONSTITUTION (ONE HUNDRED AND TWENTY-FIRST AMENDMENT) BILL, 2014

 

AS INTRODUCED IN LOK SABHA
ON 11.8.2014
Bill No. 97 of 2014

THE CONSTITUTION (ONE HUNDRED AND TWENTY-FIRST AMENDMENT) BILL, 2014

A

BILL

further to amend the Constitution of India.

BE it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows:—
1. (1) This Act may be called the Constitution (One Hundred and Twenty-first Amendment) Act, 2014.
(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. In article 124 of the Constitution, in clause (2),––
(a) for the words “after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose”, the words, figures and letter “on the recommendation of the National Judicial Appointments Commission referred to in article 124A” shall be substituted;
(b) the first proviso shall be omitted;
(c) in the second proviso, for the words “Provided further that”, the words “Provided that” shall be substituted.

3. After article 124 of the Constitution, the following articles shall be inserted, namely:—
“124A. (1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:––

(a) the Chief Justice of India, Chairperson, ex officio;
(b) two other senior Judges of the Supreme Court next to the Chief Justice of India ––Members, ex officio;
(c) the Union Minister in charge of Law and Justice––Member, ex officio;
(d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People –– Members:
Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women:
Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination.
(2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.
124B. It shall be the duty of the National Judicial Appointments Commission to—
(a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts;
(b) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and
(c) ensure that the person recommended is of ability and integrity.
124C. Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations
the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.”.

4. In article 127 of the Constitution, in clause (1), for the words “the Chief Justice of India may, with the previous consent of the President”, the words “the National Judicial Appointments Commission on a reference made to it by the Chief Justice of India, may with the previous consent of the President” shall be substituted.

5. In article 128 of the Constitution, for the words “the Chief Justice of India”, the words “the National Judicial Appointments Commission” shall be substituted.

6. In article 217 of the Constitution, in clause (1), for the portion beginning with the words “after consultation”, and ending with the words “the High Court”, the words, figures and letter “on the recommendation of the National Judicial Appointments Commission referred to in article 124A” shall be substituted.

7. In article 222 of the Constitution, in clause (1), for the words “after consultation with the Chief Justice of India”, the words, figures and letter “on the recommendation of the National Judicial Appointments Commission referred to in article 124A” shall be substituted.

8. In article 224 of the Constitution,––
(a) in clause (1), for the words “the President may appoint”, the words “the President may, in consultation with the National Judicial Appointments Commission, appoint” shall be substituted;
(b) in clause (2), for the words “the President may appoint”, the words “the President may, in consultation with the National Judicial Appointments Commission, appoint” shall be substituted.

9. In article 224A of the Constitution, for the words ‘‘the Chief Justice of a High Court for any State may at any time, with the previous consent of the President’’, the words ‘‘the National Judicial Appointments Commission on a reference made to it by the Chief Justice of a High Court for any State, may with the previous consent of the President’’ shall be substituted.

10. In article 231 of the Constitution, in clause (2), sub-clause (a) shall be omitted.

STATEMENT OF OBJECTS AND REASONS

The Judges of the Supreme Court are appointed under clause (2) of article 124 and the Judges of the High Courts are appointed under clause (1) of article 217 of the Constitution, by the President. The Ad hoc Judges and retired Judges for the Supreme Court are appointed under clause (1) of article 127 and article 128 of the Constitution respectively. The appointment of Additional Judges and Acting Judges for the High Court is made under article 224 and the appointment of retired Judges for sittings of the High Courts is made under article 224A of the Constitution. The transfer of Judges from one High Court to another High Court is made by the President after consultation with the Chief Justice of India under clause (1) of article 222 of the Constitution.

2. The Supreme Court in the matter of the Supreme Court Advocates-on-Record Association Vs. Union of India in the year 1993, and in its Advisory Opinion in the year 1998 in the Third Judges case, had interpreted clause (2) of article 124 and clause (1) of article 217 of the Constitution with respect to the meaning of “consultation” as “concurrence”.

Consequently, a Memorandum of Procedure for appointment of Judges to the Supreme Court and High Courts was formulated, and is being followed for appointment.

3. After review of the relevant constitutional provisions, the pronouncements of the Supreme Court and consultations with eminent Jurists, it is felt that a broad based National Judicial Appointments Commission should be established for making recommendations for appointment of Judges of the Supreme Court and High Courts. The said Commission would provide a meaningful role to the judiciary, the executive and eminent persons to present their view points and make the participants accountable, while also introducing transparency in the selection process.

4. The Constitution (One Hundred and Twenty-first Amendment) Bill, 2014 is an enabling constitutional amendment for amending relevant provisions of the Constitution and for setting up a National Judicial Appointments Commission. The proposed Bill seeks to insert new articles 124A, 124B and 124C after article 124 of the Constitution. The said Bill also provides for the composition and the functions of the proposed National  Judicial Appointments Commission. Further, it provides that Parliament may, by law, regulate the procedure for appointment of Judges and empower the National Judicial
Appointments Commission to lay down procedure by regulation for the discharge of its functions, manner of selection of persons for appointment and such other matters as may be considered necessary.

5. The proposed Bill seeks to broad base the method of appointment of Judges in the Supreme Court and High Courts, enables participation of judiciary, executive and eminent persons and ensures greater transparency, accountability and objectivity in the appointment of the Judges in the Supreme Court and High Courts.

6. The Bill seeks to achieve the above objectives.

RAVI SHANKAR PRASAD.
NEW DELHI;
The 8th August, 2014.

PRESIDENT’S RECOMMENDATION UNDER ARTICLE 117 OF THE CONSTITUTION OF INDIA
————

[Copy of letter No. K-11016/1/2009-US.II, dated 8 August, 2014 from Shri Ravi Shankar Prasad, Minister of Law and Justice to the Secretary-General, Lok Sabha]
The President, having been informed of the subject matter of the proposed Constitution (One Hundred and Twenty-first Amendment) Bill, 2014, recommends to the House the  consideration of the Bill under article 117(3) of the Constitution of India.

ANNEXURE

EXTRACTS FROM THE CONSTITUTION OF INDIA
* * * * *
CHAPTER IV. —THE UNION JUDICIARY
124. (1) * * * * *

(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:
Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:
Provided futher that—
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office in the manner provided in clause (4).

* * * * *

127. (1) If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.

* * * * *

128. Notwithstanding anything in this Chapter, the Chief Justice of India may at any time, with the previous consent of the President, request any person who has held the office of a Judge of the Supreme Court or of the Federal Court or who has held the office of a Judge of a High Court and is duly qualified for appointment as a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that Court:

Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that Court unless he consents so to do.

* * * * *

217. (1) Every Judge of a high Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years:

Provided that—

(a) a Judge may, by writing under his hand addressed to the President, resign his office;

(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.

* * * * *

222. ( 1 ) The President may, after consultation with the Chief Justice of India, transfer a Judge form one High Court to any other High Court.

* * * * *

224. (1) If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify.

(2) When any Judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as
a Judge of that Court until the permanent Judge has resumed his duties.

* * * * *

224A. Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court:

Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.
* * * * *

231.(1) * * * * *
(2) In relation to any such High Court,—
(a) the reference in article 217 to the Governor of the State shall be construed as a reference to the Governors of all the States in relation to which the High Court exercises jurisdiction;

* * * * *

LOK SABHA
————
A
BILL
further to amend the Constitution of India

(Shri Ravi Shankar Prasad, Minister of Law and Justice)

Source: http://rajyasabha.nic.in

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