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Saturday, December 02, 2006

Supreme Court judgement on criminal medical negligence: a challenge to the profession

From http://www.ijme.in/134ed110.html


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Oct-Dec 2005(4)

EDITORIAL
Supreme Court judgement on criminal medical negligence: a challenge to the profession
MR Hariharan Nair

The Supreme Court recently stated in Dr Jacob Mathew’s case (1) that in order to make a doctor criminally responsible for the death of a patient, it must be established that there was negligence or incompetence on the doctor’s part which went beyond a mere question of compensation on the basis of civil liability. Criminal liability would arise only if the doctor did something in disregard of the life and safety of the patient. Certain directions have also been given in the case.
Negligence, in simple terms, is the failure to take due care and caution. It is a breach of a duty caused by the omission to do something which a reasonable person – guided by those considerations which ordinarily regulate the conduct of human affairs – should have done. It may also be doing something, which a prudent and reasonable person would not have done.

The essential components of negligence are: ‘duty’, ‘breach’ and ‘resulting damage’. These definitions are rather relative and can change with the circumstances. When trying to drag a person away from the clutches of an attacking animal, one cannot ask whether this would cause damage to the person’s limbs. Doctors can also be faced with similar contingencies. On finding an accident victim in a dangerous condition, a doctor may have to attempt a crude form of emergency surgery to try and save the person’s life. No negligence is involved in such cases.

Under the civil law, victims of negligence can get relief in the form of compensation from a civil court or the consumer forum. Here, the applicant only needs to prove that an act took place that was wanting in due care and caution, and the victim consequently suffered damage. There is a difference between civil and criminal negligence. However, in certain circumstances, the same negligent act may also be seen as criminal if it constitutes an offence under any law of the land.

Criminal negligence
According to Section 304A of the Indian Penal Code, causing death by doing a rash and negligent act attracts imprisonment for up to two years, or a fine, or both. The burden to collect evidence of criminal liability is upon the complainant. The accused person will be presumed innocent until proof beyond reasonable doubt is adduced by the prosecution; a mere preponderance of probabilities would satisfy the civil court. For these reasons, an act that is seen as negligent in a civil court need not necessarily be culpable negligence in the criminal court.

The main question in the above case was whether different standards could be applied to professionals (doctors) alone, placing them on a higher pedestal for finding criminal liability for their acts or omissions. The Court noted that as citizens become increasingly conscious of their rights, they are filing more cases against doctors in the civil courts, as also under the Consumer Protection Act, 1986, alleging ‘deficiency in service’. Furthermore, doctors are being prosecuted under Section 304A of the IPC (causing death of any person by doing any rash or negligent act which does not amount to culpable homicide) which is punishable with imprisonment for a term which may extend to two years. They are also being prosecuted under Section 336 (rash or negligent act endangering human life), Section 337 (causing hurt to any person by doing any rash or negligent act as would endanger human life) or Section 338 of the IPC (causing grievous hurt to any person by doing any rash or negligent act so as to endanger human life). The Court observed that allegations of rashness or negligence are often raised against doctors by persons without adequate medical knowledge, to extract unjust compensation. This results in serious embarrassment and harassment to doctors who are forced to seek bail to escape arrest. If bail is not granted, they will have to suffer incarceration. They may be exonerated of the charges at the end; but in the meantime they would have suffered a loss of reputation; often irreversible. The tendency to initiate such cases has therefore to be curbed.

Since the medical profession renders a noble service, it must be shielded from frivolous or unjust prosecutions. With this perspective in mind the Court went into the question as to what is actionable negligence in the case of professionals. The law now laid down is as follows:

1. A simple lack of care, an error of judgment or an accident, even fatal, will not constitute culpable medical negligence. If the doctor had followed a practice acceptable to the medical profession at the relevant time, he or she cannot be held liable for negligence merely because a better alternative course or method of treatment was also available, or simply because a more skilled doctor would not have chosen to follow or resort to that practice.

2. Professionals may certainly be held liable for negligence if they were not possessed of the requisite skill which they claimed, or if they did not exercise, with reasonable competence, the skill which they did possess.

3. The word ‘gross’ has not been used in Section 304A of IPC. However, as far as professionals are concerned, it is to be read into it so as to insist on proof of gross negligence for a finding of guilty.
4. The maxim Res ipsa loquitur (Let the event speak for itself; no other evidence need be insisted) is only a rule of evidence. It might operate in the domain of civil law; but that by itself cannot be pressed into service for determining the liability for negligence within the domain of criminal law. It has only a limited application in trial on a charge of criminal negligence.

5. Statutory Rules or executive instructions incorporating definite guidelines governing the prosecution of doctors need to be framed and issued by the State and Central governments in consultation with the Medical Council of India (MCI). Until this is done, private complaints must be accompanied by the credible opinion of another competent doctor supporting the charge of rashness or negligence. In the case of police prosecutions, such an opinion should preferably from a doctor in government service.

6. Doctors accused of rashness or negligence may not be arrested simply because charges have been levelled against them; this may be done only if it is necessary for furthering the investigation, or for collecting evidence, or if the investigating officer fears that the accused will abscond.
The Supreme Court has not stated, even now, that doctors can never be prosecuted for medical negligence. It has only emphasised the need for care and caution in prosecuting doctors in the interests of society. A certain amount of immunity or extra insulation is now allowed to them considering the noble service rendered by their fraternity and in view of the reports that complainants often use criminal cases to pressurise medical professionals and to extract unjust compensation.

This immunity is available only in criminal courts and not elsewhere. The principles laid down above may apply to other professionals like engineers and lawyers as well. The decision in Jacob Mathew’s case(1) is thus a landmark judgment though some of the principles mentioned therein have been mentioned in earlier judgments.

The present judgment, however, may give room for criticism that the court, vested with the power to interpret the written law has, instead, ventured to change the law by interpreting it the way it thought would be better for society. Since Section 304A refers only to rash or negligent acts, it is a doubtful proposition that mens rea (guilty intent) must be shown for establishing a case of criminal negligence . The interpretation reading in the prefix ‘gross’ before ‘negligence’ (the latter alone appears in Section 304A of the IPC) also attracts the same criticism.

One has to hope that professionals will rise to the occasion and start discharging their functions with more care and responsibility rather than trying to hide under the shield provided by the court. Let not the profession be emboldened by the new shield, and turn less careful and inhumane in their dealings and treatment to the patients who approach them. If this happens, that will be a sad day for suffering patients. The new judgment, reading in many things not in the written law, would result in a serious blow to their rights. While it is necessary to save doctors treading the righteous path, it is also necessary to take to task those violating the oath that they took. Immunity to this group means suffering for vulnerable patients.

Reference:
1. Jacob Mathew v. State of Punjab and another - 2005 SCCL.COM 456. Criminal Appeal No. 144-145 of 2004 decided by the Supreme Court on August 5, 2005.

Retired Justice of the Kerala High Court, Chair, Institutional Ethics Committee, Sree Chitra Institute for Medical Science and Technology,
Thiruvananthapuram 695 011, Kerala, INDIA e-mail: justicemr@sancharnet.in

Supreme court judgement violates medical ethics

From http://www.ijme.in/033ed018.html

On January 19, 1995 we learnt that Justices Kuldip Singh and B. L. Hansaria of the Supreme Court of India passed a judgement which forces doctors em- ployed in prisons to participate in exe- cution by hanging and thus violates medical ethics. This judgement was passed on a petition in the public interest against provisions, in the Punjab Jail Manual, on keeping the body of a con- demned prisoner hanging for half an hour after falling from the scaffold. It was argued that such provision and practice were inhuman and barbarous.

The Judges ruled that the purpose of hanging is to execute the prisoner, the duration of hanging being immaterial. The prisoner should only hang till his/her body became lifeless.

The second part of the ruling orders the doctor employed by the jail authorities to examine the body every few minutes after the drop. As soon as the doctor diagnoses death, the body must be brought down.

Violation of medical ethics

This judgement makes the doctor a direct participant in the judicial execution of a human being. On occasion, the doctor will have to tell the jail authorities that the person is still alive, knowing that such information will be used only to continue hanging the body till the person dies. The ruling also implicitly orders the doctor not to resuscitate the condemned prisoner who remains alive after the drop.

These requirements violate medical ethics: (a) By providing information that leads directly to death, the doctor know- ingly acts to cause death of a person. (b) For a doctor to remain present and refrain from resuscitating a person in danger of losing his life contravenes medical ethics, (c) The judgment orders the doctor to discriminate against the prisoner simply because the Court has condemned him/her to die. Whilst the Courts have full authority to punish a prisoner with death, they cannot make a doctor discriminate against the condemned prisoner. For the doctor, a prisoner, like any other individual, is to be helped when in danger of losing life.

Forum protests

The Forum for Medical Ethics Society wrote to the Chief Justice, Supreme Court of India, on February 3, 1995 and requested him to ensure that the judgement not be implemented. The Forum expressed its willingness to assist the Court by making a detailed submission (including notes on practices and provisions in other countries that safeguard the ethics of doctors under such circumstances) after going through the full text of the judgment. A review was requested.

The Forum agreed with the need to abolish the procedure of leaving the body hanging for half an hour. It also accepts the need to examine the condemned person to determine death. It suggested that these repetitive examinations be conducted by a non-medical prison official trained to make the diagnosis of death. Once such a diagnosis is made, the body can be taken to the doctor for final examination and certification of death.

The Supreme court rejected Forum's request. Mr. Raj Gopal, Assistant Reg- istrar of the Supreme Court of India replied (letter 321/90/Sc/PILC dated April 1, 1995): "I am directed to say that The Forum for Medical Ethics Society not being a party to the proceed- ings, no action can be taken on the matter."

This is a response expected of a bureaucrat. It uses a technical point to dodge a vital issue. The Honorable Judges of the Supreme Court could, if they wished, modify their judgement in the public interest. If necessary they could have converted our letter into a petition.

Representations from others in India and abroad to the Honorable Chief Justice, Supreme Court of India, New Delhi, India (Telegraphic Address: SUPRE- MECO.'New Delhi, India) may help.

Amar Jesani,310, Prabhu Darshan, S. Sainik Nagar, Amboli Andheri (W), Bombay 400 058. He is a member of the editorial team of Medical Ethics. He is also the Coordinator of Centre for Enquiry into Health and Allied Themes (CEHAT), Bombay.

Sunday, November 26, 2006

Right to Information Act - Department of Health and Family Welfare

The RTI Act Manual of Health and Family Welfare Department can be seen at
http://www.tn.gov.in/rti/proactive/hfw/handbook-health.pdf

Public Information Officers & Appellate Authorities of the Health and Family Welfare Department are (http://www.tn.gov.in/rti/hfw.htm)

Public Information Officer
Thiru T. P. Easwaran
Deputy Secretary (ME) to the Government
Health and Family Welfare Department,
Secretariat, Chennai-600 009

Appellate Authority
Additional Secretary to the Government,
Health and Family Welfare Department,
Secretariat, Chennai-600 009

Friday, November 24, 2006

Dalits who have converted to Buddhism eligible to apply under SC Quota

The Madras High Court has asked the Tamil Nadu Public Service Commission (TNPSC) to delete a clause in its notification, wherein Dalits who had converted to Buddhism were declared not eligible for benefits under the Scheduled Castes category. The First Bench, comprising Chief Justice A.P. Shah and Justice K. Chandru, gave the direction on a public interest litigation petition filed by I. Elangovan, Head of the Department of English, Voorhees College, Vellore.

The TNPSC invited applications for 229 posts of assistants and 190 personal clerks in the Tamil Nadu Secretariat Service and 82 assistants and seven personal clerk posts in the TNPSC. The examination is scheduled to be held on January 7, 2007. The last date for submitting applications was October 18.

In its general instructions, the TNPSC specifically stated that a member of the Scheduled Castes on conversion to Buddhism would not be entitled to the concessions admissible to Adi Dravida (Hindus).

Prof. Elangovan submitted that by way of a constitutional amendment in 1990 the Centre had declared that Dalits embracing Buddhism too were eligible for all benefits under the SC category. Acceding to the submissions, the Bench asked the TNPSC to delete the impugned clause and publish a new advertisement calling for applications from Dalit-Buddhists.

Thursday, November 23, 2006

Contract Medical Officers & Contract Medical Consultants working in the Government Medical Institutions - Bringing into regular time scale of pay



ABSTRACT

Contract Medical Officers and Contract Medical Consultants working in the Government Medical Institutions - Bringing into regular time scale of pay - Orders - Issued.
________________________________________
HEALTH AND FAMILY WELFARE (B2) DEPARTMENT
G.O.(Ms) No.302
Dated: 20.11.2006

Read:
1. G.O.(Ms) No.197, Health, dated 7.6.2004.
2. G.O.(Ms) No.31, Health, dated 3.3.2005.
3. From the Director of Public Health and Preventive Medicine, Letter No.47018/E5/A3/2006 dated 24.5.2006.
4. From the Director of Public Health and Preventive Medicine, Letter No.47018/E5/A3/2006 dated 27.5.2006.
5. From the Director of Public Health and Preventive Medicine, Letter No.47018/E5/A3/2006 dated 7.7.2006.
---
ORDER:
In the Government Order first read above, orders were issued for the creation of 186 posts of Medical Officers in the 93 upgraded Primary Health Centres on contract basis on a consolidated pay of Rs.8,000/- at the rate of 2 posts for each upgraded Primary Health Centre.
2. In the Government Order second read above, orders were issued, pending selection of candidates by the Tamil Nadu Public Service Commission, to recruit 2322 Assistant Surgeons in the Tamil Nadu Medical Service to be filled up on contract basis by calling for candidates from Employment Exchange for a period of 6 months or till the candidates selected by the Tamil Nadu Public Service Commission join duty on a consolidated pay as indicated below:-
  1. Doctors with MBBS qualification - Rs. 8,000/- p.m.
  2. Doctors with MBBS and Post Graduate diploma qualification - Rs. 9,000/- p.m.
  3. Doctors with MBBS and Post Graduate degree qualification - Rs.10,000/- p.m.

3. The Director of Public Health and Preventive Medicine has stated that as on date against 186 posts of Contract Medical Officers sanctioned to the 93 upgraded Primary Health Centres, 153 Contract Medical Officers are in position and the remaining 33 posts are vacant. The Director of Public Health and Preventive Medicine has, therefore, stated that the 186 posts of Contract Medical Officers to the 93 upgraded Primary Health Centres sanctioned on a consolidated pay of Rs.8,000/- p.m. may be brought into time scale of pay of Rs.8000-275-13500.

4. The Director of Public Health and Preventive Medicine has also stated that as against the permission accorded for filling up 2322 Contract Medical Consultants in the vacancies available, only 1575 Contract Medical Consultants were in position as on May 2006. Even among these Contract Medical Consultants, some of them have been selected by Tamil Nadu Public Service Commission and they were given necessary appointment as Assistant Surgeon in the time scale of pay. The remaining 1352 doctors who are working as Contract Medical Consultants have to be absorbed in the time scale of pay. The Director of Public Health and Preventive Medicine has, therefore, requested the Government to consider the need for bringing the Contract Medical Officers / Contract Medical Consultants into time scale of pay of Rs.8000-325-13500 in order to make them to discharge their duties with more dedication and commitment in serving the vulnerable rural sections of the society.

5. Apart from the Contract Medical Consultants there are about 30 Medical Officers who are working in Tamil Nadu Medical Service on temporary basis on time scale of pay without being selected by the Tamil Nadu Public Service Commission for regular appointment in the Special Qualifying Examination held earlier.

6. The Government have examined the above proposals and direct that the 153 Contract Medical Officers and 1352 Contract Medical Consultants who were appointed on consolidated pay of Rs.8000/- p.m. be appointed temporarily as Assistant Surgeon in the Tamil Nadu Medical Service in the time scale of pay of Rs.8000-275-13500 with other allowances admissible to the post as per the rules and orders in force with effect from 1.11.2006 in relaxation of rule 10(a)(i) of the General Rules for the Tamil Nadu State and Subordinate Services and they will be allowed to continue in service pending passing of Special Qualifying Examination to be conducted by the Tamil Nadu Public Service Commission. The Government also direct that about 30 temporary Assistant Surgeons who are working in the Tamil Nadu Medical Service on time scale of pay without being selected by the Tamil Nadu Public Service Commission for regular appointment in the Special Qualifying Examination conducted earlier are instructed to appear for the Special Qualifying Examination to be conducted by the Tamil Nadu Public Service Commission.

7. The Government also direct that their seniority shall be fixed by the merit list drawn by the Tamil Nadu Public Service Commission in the Special Qualifying Examination to be conducted by the Tamil Nadu Public Service Commission under rule 35(a) of the General Rules for the Tamil Nadu State and Subordinate Services.

8. The Government also direct that the 186 posts of Contract Medical Officer created in the Government Order first read above, be brought into time scale of pay of Rs.8000-275-13500 with effect from 1.11.2006 with other allowances admissible to the post as per the rules and orders in force. However only 153 persons are working in the above sanctioned posts.

9. In exercise of the powers conferred under rule 48 of the General Rules contained in Part-II Tamil Nadu State and Subordinate Services Rules in Volume I of the Tamil Nadu Services Manual 1987, the Governor of Tamil Nadu hereby relaxes the rule 10(a)(i) of the General Rules for Tamil Nadu State and Subordinate Services so as to enable the Government to appoint 153 Contract Medical Officers and 1352 Contract Medical Consultants temporarily as Assistant Surgeons in the Tamil Nadu Medical Service pending passing of the Special Qualifying Examination proposed to be conducted by the Tamil Nadu Public Service Commission.

10. The Director of Public Health and Preventive Medicine is directed to instruct all the Contract Medical Officers and Contract Medical Consultants who are brought into time scale of pay to appear for the Special Qualifying Examination proposed to be conducted by the Tamil Nadu Public Service Commission for regularizing their services. Further, the temporary Assistant Surgeons who are in service without being selected by the Tamil Nadu Public Service Commission in the Special Qualifying Examination conducted earlier shall also be instructed to appear for the Special Qualifying Examination to be conducted by the Tamil Nadu Public Service Commission for regularisation of their services.

11. The individuals mentioned above who have not passed in the Special Qualifying Examination proposed to be held shall be ousted from service without assigning any reason therefor.

12. This order issues with the concurrence of the Finance Department vide its U.O.No.350 / DS (PU) / 2006-1 dated 20.11.2006.
(BY ORDER OF THE GOVERNOR)
V.K. SUBBURAJ
SECRETARY TO GOVERNMENT
To
The Director of Public Health and Preventive Medicine, Chennai-6.
The Director of Medical and Rural Health Services, Chennai-6.
The Director of Medical Education, Chennai-10.
The Secretary, Tamil Nadu Public Service Commission,Chennai-2.
The Accountant General (A&E), Tamil Nadu, Chennai-18.
The Accountant General (Audit), Tamil Nadu, Chennai-18.
The Pay and Accounts Officer (South), Chennai-35.
The Pay and Accounts Officer (East), Chennai-5.
The Pay and Accounts Officer (North), Chennai-79.
Copy to:
Personnel and Administrative Reforms (Pers.C) Department, Chennai-9.
Finance (Health-I) Department, Chennai-9.
The Special Personal Assistant to Minister (Health), Chennai-9.
The Special Personal Assistant to Minister (Finance), Chennai-9.
The Secretary to Chief Minister, Chennai-9.
Sf/Sc
//Forwarded/by Order//
SECTION OFFICER

Wednesday, November 22, 2006

Chennai High Court Stays Special TNPSC

சென்னை :

அரசுப் பணியில் கடந்த 2003ம் ஆண்டு நியமிக்கப்பட்ட தற்காலிக ஊழியர்கள் 11 ஆயிரத்துக்கும் மேற்பட்டோரை நிரந்தரப்படுத்த அரசு எடுக்கும் நடவடிக்கையை எதிர்த்து சென்னை ஐகோர்ட்டில் மனு தாக்கல் செய்யப்பட்டுள்ளது. தற்காலிக ஊழியர்களைப் பொறுத்தவரை தற்போதையை நிலையே தொடர வேண்டும் என்று சென்னை ஐகோர்ட் இடைக்கால உத்தரவிட்டுள்ளது.

சென்னை ஐகோர்ட்டில் வக்கீல் எம்.ஞானசேகர் என்பவர் தாக்கல் செய்த மனுவில் கூறியிருப்பதாவது:

கடந்த 2003ம் ஆண்டு அரசு ஊழியர்கள் போராட்டத்தில் குதித்தனர். இதையடுத்து போராட்டத்தில் ஈடுபட்டதாக பணியில் இருந்து அரசு ஊழியர்கள் டிஸ்மிஸ் செய்யப்பட்டனர். டிஸ்மிஸ் செய்யப்பட்ட இடங்களில் தற்காலிகப் பணியாளர்களை வேலை வாய்ப்பு அலுவலகம் மூலம் தேர்ந்தெடுத்து அரசு நியமித்தது. இவ்வாறு 10 ஆயிரத்துக்கும் மேற்பட்ட ஊழியர்களை ஒப்பந்த முறையில் இளநிலை உதவியாளர்களாக அரசு நியமித்தது. இவர்கள் தமிழ்நாடு அரசுப் பணியாளர்கள் தேர்வாணையம் மூலம் தேர்ந்தெடுக்கப்படவில்லை. பணியில் இவர்களை நியமிக்கும் போது "தற்காலிகமாக ஒப்பந்த அடிப்படையில் நியமிக்கப்படுவதாகவும் பிற்காலத்தில் இதை வைத்து பணியில் உரிமை கோர மாட்டோம்' என்றும் அவர்களிடம் உத்தரவாதம் பெற்றனர்.

தற்போதைய நிலையில் தமிழக அரசின் பல்வேறு துறைகளில் 11 ஆயிரத்துக்கு மேற்பட்ட ஒப்பந்த தொழிலாளர்கள் பணிபுரிந்து வருகின்றனர். அனுமதிக்கப்பட்ட பணியிடங்கள் 7 ஆயிரத்து702. அப்படியிருக்கும் போது எப்படி 11 ஆயிரத்துக்கும் மேற்பட்ட ஒப்பந்தத் தொழிலாளர்களை பணியில் தொடர அனுமதிக்கின்றனர் என்பது தெரியவில்லை. அரசின் செயலர்கள் கூட்டத்தில் நடந்த விவாதத்தின் அடிப்படையில் கடந்த 19ம் தேதி ஒரு அரசாணை பிறப்பிக்கப்பட்டது. அதில், ஒப்பந்த அடிப்படையில் தற்காலிகமாக நியமிக்கப்பட்டவர்களின் நலனை கருத்தில் கொண்டு அவர்களுக்கென்று டி.என்.பி.எஸ்.சி., மூலம் குரூப்4 அளவில் தேர்வு நடத்தி இளநிலை உதவியாளராக பணிக்கு தேர்ந்தெடுப்பது என்று கூறப்பட்டுள்ளது. மேலும் குரூப்4 அளவில் சிறப்புத் தேர்வு நடத்துமாறு டி.என்.பி.எஸ்.சி.,யையும் கேட்டுக் கொண்டுள்ளது.

இத்தகைய உத்தரவை பிறப்பிப்பதற்கு தமிழக அரசுக்கு அதிகார வரம்பில்லை. இளநிலை உதவியாளர் பணியிடங்களை நிரப்புவது டி.என்.பி.எஸ்.சி.,யின் அதிகார வரம்புக்கு உட்பட்டது. ஒப்பந்த ஊழியர்களை கொண்டு முழுவதுமாக அதை நிரப்ப முடியாது. ஒப்பந்த ஊழியர்களுக்காக மட்டுமே சிறப்புத் தேர்வு நடத்துவது என்பது வேலைவாய்ப்பு அலுவலகத்தில் பதிவு செய்து காத்திருக்கும் ஆயிரக்கணக்கான பேர்களை புறக்கணிப்பதாகும். இது சட்டவிரோதமானது. ஒப்பந்த ஊழியர்களை பணியில் நியமிக்கும் கட்டத்தில் அவர்களது பணி நிபந்தனைகள் பற்றி அவர்களுக்கு கூறப்பட்டுள்ளது. ஒப்பந்த ஊழியர்களை தேர்ந்தெடுக்கும் போது இடஒதுக்கீட்டை, வேலைவாய்ப்பு அலுவலகத்தில் பதிவு செய்யப்பட்ட சீனியாரிட்டியை அரசு பின்பற்றவில்லை.

எனவே, கடந்த 19ம் தேதி தமிழக அரசு பிறப்பித்த அரசாணைக்கு தடை விதிக்க வேண்டும். இந்த உத்தரவை ரத்து செய்ய வேண்டும்.

இவ்வாறு அந்த மனுவில் கூறப்பட்டுள்ளது.

இம்மனு நேற்று தலைமை நீதிபதி ஏ.பி.ஷா, நீதிபதி சந்துரு ஆகியோர் அடங்கிய "முதல் பெஞ்ச்' முன் விசாரணைக்கு வந்தது. இம்மனுவுக்கு நான்கு வாரங்களுக்குள் பதிலளிக்குமாறு தமிழக அரசுக்கு "முதல் பெஞ்ச்' உத்தரவிட்டது. தற்காலிக ஊழியர்களைப் பொறுத்தவரை தற்போதைய நிலையே தொடர வேண்டும் என்றும் "முதல் பெஞ்ச்' உத்தரவிட்டுள்ளது.

Temporary appointments made on contract basis during 2003

ABSTRACT
Public Services-Temporary appointments made on contract basis during 2003-
Conduct of Special Competitive Examination by Tamil Nadu Public Service
Commission-Orders-issued

PERSONNEL AND ADMINISTRATIVE REFORMS (P) DEPARTMENT

G.O.Ms.No. 155 DATED: 19 .9.2006

READ:

1. G.O.Ms.No.84, Personnel and Administrative Reforms (G)
Department, dated 4.7.2003
2. G.O.Ms.No.85, Personnel and Administrative Reforms (G)
Department, dated 4.7.2003
…………….
ORDER:
In the Government Orders read above, orders have been issued for appointment of temporary Assistants / Junior Assistants in Secretariat and in various Departments in the Districts on contract basis. Taking into account the welfare of those appointed temporarily on contract basis and are continuing in service at present, Government have decided to conduct a Special Competitive Examination in Group IV standard, through the Tamil Nadu Public Service
Commission so as to absorb them as Junior Assistant in Tamil Nadu Ministerial
Service/ Tamil Nadu Judicial Ministerial Service.

2. The Tamil Nadu Public Service Commission is therefore requested to conduct a Special Competitive Examination in Group IV Standard to the above Assistants / Junior Assistants continuing in service as Assistant in the Departments of Secretariat and as Junior Assistant in the Districts so as to absorb them as Junior Assistant in the Tamil Nadu Ministerial Service/ Tamil Nadu Judicial Ministerial Service .

(BY ORDER OF THE GOVERNOR)
L.K. TRIPATHY
CHIEF SECRETARY TO GOVERNMENT
To
The Secretary, Tamil Nadu Public Service Commission,
Chennai- 2.
All Departments of Secretariat, Chennai- 9.
The Tamil Nadu Legislative Assembly Secretariat, Chennai -9.
All Heads of Departments
All Collectors and District Judges,
All Sections in Personnel and Administrative Reforms Department,Chennai 9.
The Director of Treasuries and Accounts, Chennai 35
The Director of Employment and Training, Chennai 5
The Registrar of High Court, Chennai 104
Stock File/Spare Copies.
/Forwarded/ By Order/
Section Officer

Tuesday, November 21, 2006

Attempt to rape is not a crime: Supreme Court

From http://www.dnaindia.com/report.asp?NewsID=1057014

The Supreme Court has held that unlike the charge of attempt to murder, the Indian Penal Code does not recognise the charge of attempt to rape. Rape is said to have been committed only if a man inserts his sexual organ into the victim. Any other act only qualifies for the offence of outraging a woman or child’s modesty.

Highlighting this difference, the Supreme Court has said that a man who is caught preparing to rape a woman cannot be charged under section 376 of the IPC, which provides for a minimum punishment of seven years in prison.

He also cannot be charged with attempted rape under section 511 of IPC, which deals with attempts to commit offences, like murder, that carry a minimum penalty of life in prison.

Converting the charge against Tarkeshwar Sahu, a Jharkhand resident, from rape to outraging the modesty of a 12-year-old girl, Justice SB Sinha and Justice Dalveer Bhandari held him guilty of kidnapping her and violating her modesty.

The trial court and Jharkhand high court had convicted Sahu of rape and attempt to rape.

But referring to a British court ruling, the Supreme Court said, “To constitute the offence of rape, there must be penetration. Even the slightest penetration will be sufficient.” Sahu had not penetrated the child.

Addressing the issue of a child being the victim of an offence of outraging of modesty, the judges, quoting another judgment relating to a case involving a seven-month-old baby, said a girl possesses from birth the modesty that is the attribute of her sex.

“The offence punishable under section 354 is an assault on or use of criminal force on a woman with the intention of outraging her modesty or with the knowledge of the likelihood of doing so,” they ruled.

Since Sahu had lured the girl and taken her to his hut, removed his shirt and also the girl’s garments, he was held guilty of kidnapping her and outraging her modesty.

Monday, November 20, 2006

Cases should not be decided on basis of emotions, says apex court

From The Hindu http://www.hindu.com/2006/11/20/stories/2006112003141300.htm

Cases should not be decided on basis of emotions, says apex court

Legal Correspondent

  • "Resorting to judicial activism frequently is unconstitutional"
  • Courts must not encroach into executive or legislative domain: Bench
  • "Regular process of recruitment has to be resorted to when regular posts are to be filled"

New Delhi: Cases seeking regularisation of temporary or ad hoc workmen have to be decided on legal principles and not on the basis of emotions and sympathies, the Supreme Court has held.

A Bench of Justices S.B. Sinha and Markandey Katju said: "The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated.

Fraught great peril

"Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary,"

Writing the judgment, Justice Katju said, "Courts must exercise judicial restraint and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularisation, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case."

The Bench said: "Jobs cannot be created by judicial orders or even by legislative or executive decisions Large-scale suicides by farmers in several parts of the country also show the level of unemployment. These are the social and economic realities of the country, which cannot be ignored.

``One may be very large hearted but then economic realities have also to be seen. Giving appointments means adding extra financial burden to the national exchequer.

"Money for paying salaries to such appointees does not fall from the sky, and it can only be realised by imposing additional taxes on the public or taking fresh loans, both of which will only lead to additional burden on the people.

Not a precedent

It said: "A regular process of recruitment or employment has to be resorted to when regular vacancies and posts are to be filled up.

``It is well settled that there is no right vested in any daily wager to seek regularisation, which can only be done in accordance with the rules and not de hors the rules.


"No doubt, in some decisions the Supreme Court has directed regularisation of temporary or ad hoc employees but it is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent. Often the Supreme Court issues directions without laying down any principle of law, in which case, it is not a precedent."

The Bench was dealing with an appeal filed by Indian Drugs and Pharmaceuticals Ltd. against a judgment of the Uttaranchal High Court directing regularisation of the services of certain casual workers employed in the company.

Allowing the appeal, the Bench said, "the Labour Court and High Court have passed their orders on the basis of emotions and sympathies, but cases in Court have to be decided on legal principles and not on the basis of emotions and sympathies."

Supreme Court Appeal (civil) 3981 of 2006 Contract Cannot be Regularised

CASE NO.:
Appeal (civil) 3981 of 2006

PETITIONER:
Surendra Prasad Tewari

RESPONDENT:
Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad & Others

DATE OF JUDGMENT: 08/09/2006

BENCH:
G.P. MATHUR & DALVEER BHANDARI

JUDGMENT:
J U D G M E N T
[Arising out of SLP (Civil) No. 23114 of 2003]


Dalveer Bhandari, J.

Leave granted.

Regularization in public employment is the main issue which falls for adjudication in this appeal.

This appeal is directed against the judgment dated 21.10.2003 passed in Civil Writ Petition No. 6475 of 1992 by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow, UP.

Brief facts which are necessary to dispose of the appeal are recapitulated as under:

The appellant was appointed by Rajya Krishi Utpadan Mandi Parishad, U.P., vide order dated 17.7.1989, for a period of three months on contractual basis on a remuneration of Rs.1,500/- for conducting a survey in the deficiency of procurement of the agricultural produce of Meerut Division, namely, Potato etc. Since the nature of employment has been disputed by the appellant, therefore, we deem it appropriate to set out the relevant portion of the order dated 17.7.1989 as under:
"Shri Surinder Prasad Tiwari, 17, Rana Partap Marg, Lucknow, is hereby appointed for a period of three months only, on contractual basis on a remuneration of Rs.1,500/- (Rupees one thousand five hundred only) per month for conducting a survey in the deficiency of procurement of the agricultural produce of Meerut Division, namely Potato etc.

The services of Shri Tiwari shall stand terminated automatically after the expiry of the above period of three months and his services can also be terminated earlier also without assigning any reason, if there is no need or under special circumstances. However, no compensation will be given to Shri Tiwari in this regard.

Sd/- Vijendra Pal
Director, Mandi."


The appellant, on 6.12.1989, was again appointed for a period of three months on contractual basis on a remuneration of Rs.1500/- for surveying the land of the village community and to determine whether Gramin Bazar/Haat is held on the lands of Gram Samaj or Zila Parishad and how many wholesalers/commission agents were working. The relevant part of order dated 6.12.1989 reads as under:
"In continuation of the efforts of the Mandi Parishad for terminating/abolishing prevalent system of Tehbazari in the Faizabad and Gorakhpur Divisions, Shri Surinder Prasad Tiwari through Shri V.P. Mishra, 17, Rana Partap Marg, Lucknow, is hereby appointed for a period of three months only, on contractual basis on a remuneration of Rs.1,500/- (Rupees one thousand five hundred only) per month for conducting a survey of the following works-

(1) Details of the land of the village community;

(2) Whether Gramin Bazar/Haat is held on the lands of Gram Samaj or Zila Parishad;

(3) How many wholesalers/commission agents are working.

The services of Shri Tiwari shall stand terminated automatically after the expiry of the above period and his services can be terminated earlier also without assigning any reason, if there is no need or under special circumstances. However, no compensation will be given to Shri Tiwari in this regard.

Sd/- Arvind Mohan
Director, Mandi"


On 23.3.1990, the appellant was again appointed on contractual basis for a period of five months. The relevant part of the order dated 23.3.1990 reads as follows:
"In continuation of the efforts of the Mandi Parishad terminating/abolishing prevalent system of Tehbazari in the Faizabad and Gorakhpur Divisions, Shri Surinder Prasad Tiwari, 17, Rana Partap Marg, Lucknow, is hereby appointed for a period of five months, on contractual basis, on a remuneration of Rs.1,500/- (Rupees one thousand five hundred only) per month for conducting a survey of the following works-

(1) Details of the land of the village community;

(2) Whether Gramin Bazar/Haat is held on the lands of Gram Samaj or Zila Parishad;

(3) How many wholesalers/commission agents are working.

The services of Shri Tiwari shall stand terminated automatically after the expiry of the above period and his services can be terminated earlier also without assigning any reason, if there is no need or under special circumstances and no compensation will be given to Shri Tiwari in this regard.

Sd/- Arvind Mohan
Director, Mandi"


The appellant, on 23.8.1990, was again appointed for a period of four months on contractual basis. The relevant part of the order dated 23.8.1990 reads as under:
"Shri Surinder Prasad Tiwari is hereby appointed for a period of four months only, on contractual basis on a remuneration of Rs.1,800/- (Rupees one thousand eight hundred only) per month for executing the development works of Kanpur Area viz., Wood Mandi and Leather Mandi and for development of Vegetable Mandi and for survey and other works, from the date of his joining the Mandi Samiti, Kanpur. All the terms and conditions of the contract shall remain as before. Shri Tiwari will work under the control of Secretary, Mandi Samiti, Kanpur and payments also will be made to him by the Mandi Samiti, Kanpur.

Sd/- Arvind Mohan
Director, Mandi"


The appellant was again appointed for a period of four months by an order dated 14.2.1991. Relevant part of the said order reads as under:
"Shri Surinder Prasad Tiwari through Shri V.P. Mishra, 17, Rana Pratap Marg, Lucknow is hereby appointed for a period of four months only on a monthly remuneration of Rs.1,800/- (Rupees one thousand eight hundred only) for conducting survey of the construction/development works of the New Mandis of Wood and Leather in Kanpur. He is being appointed in the Mandi Samiti, Kanpur as per the terms and conditions of the contract. Thereafter, this contract work shall automatically stand terminated.

Payments of the aforesaid remuneration will be made to Shri Surinder Tiwari by the Mandi Samiti, Kanpur.

Sd/- Arvind Mohan
Director, Mandi"


On 1.7.1991 the appellant was again appointed for a period of four months on contractual basis. The relevant part of the order dated 1.7.1991 reads as under:
"By Board's Order No.A-K/91-328 dated 14.2.1991, Shri Surinder Prasad Tiwari was appointed in the Mandi Samiti, Kanpur, for a period of four months only, on contractual basis on a remuneration of Rs.1,800/- (Rupees one thousand eight hundred only) per month as per the terms and conditions of the Contract. Now, after completion of the period of the contract, the services of Shri Tiwari are hereby extended for a further period of three months from the date of issuance of this order, in the interests of general public. The contractual period shall stand terminated automatically after expiry of three months. However, his services can also be terminated any time before contractual period of three months, in case he is not required, or under any special circumstances, and for which Shri Tiwari will not be entitled to any compensation. The remuneration of Shri Tiwari will be paid by the Mandi Samiti, Kanpur, as per the terms and conditions of earlier contract.

He should join only after agreeing to the terms and conditions of the previous contract.

Sd/- Arvind Mohan
Director, Mandi"


Lastly, on 14.10.1991, the appellant was again appointed for a period of six months on contractual basis. The relevant part of the order dated 14.10.1991 reads as under:
"Shri Surinder Prasad Tiwari through Shri V.P. Mishra, 17, Rana Pratap Marg, Lucknow is hereby appointed for a period of six months only, on contractual basis, on a monthly remuneration of Rs.1,800/- (Rupees one thousand eight hundred only) per month for executing the election/re-organization works of Mandi Samitis, under the terms and conditions of the contract. He is being kept on contract with effect from the date of his joining and he will remain under the control of the Deputy Director (Marketing) Mandi Parishad, H.O.

Sd/- Arvind Mohan
Director, Mandi"

The case of the appellant is that his services were orally terminated on 1.9.1992, whereas, according to the respondents, the appellant's appointment was on contractual basis and his services came to an end after the period of the contract was completed. The appellant aggrieved by the oral termination and/or non-continuation in service preferred a writ petition before the Allahabad High Court at Lucknow Bench, Lucknow.

The Division Bench of the High Court after hearing the parties observed that, in law, there are only two kinds of appointments. The first is the permanent appointment and the second is the temporary appointment. According to the Division Bench, temporary appointments have further various sub-categories, such as casual appointee, daily wager, ad-hoc appointee, contractual appointee, probationer etc. The Court observed that a temporary appointee has no right to the post. Only a permanent appointee has such a right to the post. The Court observed that the appointments to the permanent posts are made after following the procedure under Article 16 of the Constitution. The Court observed that the appellant was never appointed by following the said procedure and he was never confirmed and, consequently, he has no right to the post as well. The Court further observed that merely because the appellant had succeeded in getting an interim order of this Court, it does not entitle him to have any right and the writ petition filed by the appellant was dismissed by the High Court on 21.10.2003.

The appellant, aggrieved by the said order of the High Court, preferred this appeal before this Court. The appellant has raised a number of questions of law in this appeal. The same are reproduced as under:
a. Whether engaging the employees on contract basis without any security of their tenure and continuing them for years on meager wages for the works of perennial nature, is not illegal, arbitrary, unconstitutional and within the ambit of Unfair Labour Practice?

b. Whether an employee continuing on post from last more than 14 years is not entitled to the regularization of his services?

c. Whether the appointment of the petitioner can be termed as irregular and illegal when the Mandi Regulations 1984 itself provide the provisions of a contract appointment?

d. Whether it is permissible under law to terminate the services of the petitioner while the hundreds of juniors appointed in the same manner are still retained in the service?

e. Whether the High Court has not committed the error of law in dismissing the writ petition of the petitioner when approximately 110 civil appeals of the employees appointed in the same manner are still pending before the Hon'ble Supreme Court?

f. Whether the High Court has not erred in dismissing the writ petition of the petitioner ignoring the fact that the matter of regularization of the petitioner is still under consideration before the authorities?

g. Whether the oral order terminating the service of the petitioner can be justified when the same was passed without assigning any reason and without giving opportunity of hearing?

h. Whether the High Court was justified in dismissing the petition filed by the petitioner?

i. Whether in any event the judgment and order passed by the High Court is liable to be set aside?

The appellant submitted that the impugned judgment is manifestly illegal, incorrect and against the record of the case. The appellant also submitted that the respondents are guilty of unfair labour practice by engaging the employees on contract basis without any security of their tenure and continuing them for years on meager wages for the works of perennial nature. It was further submitted that the appellant has been working continuously for 14 years and was entitled to be regularized in service. The appellant also submitted that number of persons similarly placed are still continuing in their services, whereas the services of the appellant have been dispensed with.

This Court issued a show-cause notice and, in pursuance to the said show-cause notice, a comprehensive counter affidavit was filed by Lokesh Kumar, Deputy Director (Administration), Head Quarters, Mandi Parishad, Lucknow on behalf of the respondents. At the outset, it was incorporated in the counter affidavit that the appellant had suppressed the material facts from this Court. The appellant had not disclosed to the Court that his tenure of 14 years was due to the interim order dated 15.9.1992 granted in favour of the appellant by the High Court and it was because of the interim order that the respondents had to continue the appellant in the department. It was further stated in the counter affidavit that the appellant was merely a temporary employee who was given employment as per the needs and exigencies of different projects undertaken by the Mandi Parishad. It was further stated that the appointment of the appellant was not against any substantive post, as alleged by the appellant in the writ petition. It was also incorporated in the counter affidavit that the appellant was given fixed term appointments on contractual basis and his services were automatically terminated after the expiry of the contract period. The copies of the orders giving contractual appointments to the appellant have been produced along with the counter affidavit, which have already been reproduced in the preceding paragraphs of this judgment. According to the respondents, the appellant's case for regularization has no merit and the High Court was correct and justified in dismissing the writ petition filed by the appellant.

In the rejoinder affidavit, the appellant has reiterated the averments incorporated in the petition.

On careful analysis of the appointment orders, it is revealed that the appellant's contractual appointment was for a fixed term for carrying out the work of a specified project. The appellant was engaged from time to time to work on different projects and the last contract was dated 14.10.1991 and thereafter, the appellant was not appointed. The appellant's appointment was purely a fixed term appointment. By no stretch of imagination it could be said that the appointment of the appellant was made while following the procedure as laid down under Articles 14 and 16 of the Constitution. A three-Judge Bench of this Court in Delhi Development Horticulture Employees' Union v. Delhi Administration, Delhi & Others reported in (1992) 4 SCC 99, observed as under:
"The above figures show that if the resources used for the Jawahar Rozgar Yojna were in their entirety to be used for providing full employment throughout the year, they would have given employment only to a small percentage of the population in need of income, the remaining vast majority being left with no income whatsoever. No fault could, therefore, be found with the limited object of the scheme given the limited resources at the disposal of the State. Those employed under the scheme, therefore, could not ask for more than what the scheme intended to give them. To get an employment under such scheme and to claim on the basis of the said employment, a right to regularization, is to frustrate the scheme itself. No court can be a party to such exercise. It is wrong to approach the problems of those employed under such schemes with a view to providing them with full employment and guaranteeing equal pay for equal work. These concepts, in the context of such schemes are both unwarranted and misplaced. They will do more harm than good by depriving the many of the little income that they may get to keep them from starvation. They would benefit a few at the cost of the many starving poor for whom the schemes are meant. That would also force the State to wind up the existing schemes and forbid them from introducing the new ones, for want of resources. This is not to say that the problems of the unemployed deserve no consideration or sympathy. This is only to emphasise that even among the unemployed a distinction exists between those who live below and above the poverty line, those in need of partial and those in need of full employment, the educated and uneducated, the rural and urban unemployed etc."

In State of Himachal Pradesh, through the Secretary, Agriculture to the Govt. of Himachal Pradesh v. Nodha Ram & Others reported in 1998 SCC (L&S) 478 : AIR 1997 SC 1445, in regard to the status of the temporary project employees employed in the Government project, the Court held as under:
"It is seen that when the project is completed and closed due to non-availability of funds, the employees have to go along with its closure. The High Court was not right in giving the direction to regularize them or to continue them in other places. No vested right is created in temporary employment. Directions cannot be given to regularize their services in the absence of any existing vacancies nor can directions be given to the State to create posts in a non-existent establishment. The Court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them despite non-availability of the work. We are of the considered view that the directions issued by the High Court are absolutely illegal warranting our interference. The order of the High Court is, therefore, set side."

The ratio of this case squarely applies to the facts of this appeal.In Karnataka State Private College Stop-Gap Lecturers Association etc. v. State of Karnataka & Others reported in (1992) 2 SCC 29, the Court held as under:
".. A temporary or ad hoc employee may not have a claim to become permanent without facing selection or being absorbed in accordance with rules but no discrimination can be made for same job on basis of method of recruitment. Such injustice is abhorrent to the constitutional scheme."

The controversy involved in this case is no longer res integra.

A Constitution Bench of this Court in the case of Secretary, State of Karnataka & Others v. Umadevi (3) & Others reported in (2006) 4 SCC 1 has comprehensively dealt with the issues involved in this case. The Constitution Bench has observed as follows:
"2. Public employment in a sovereign socialist secular democratic republic, has to be as set down by the Constitution and the laws made thereunder. Our constitutional scheme envisages employment by the Government and its instrumentalities on the basis of a procedure established in that behalf. Equality of opportunity is the hallmark, and the Constitution has provided also for affirmative action to ensure that unequals are not treated as equals. Thus, any public employment has to be in terms of the constitutional scheme.

4. But, sometimes this process is not adhered to and the Constitutional scheme of public employment is bypassed. The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure through the Public Service Commissions or otherwise as per the rules adopted and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post. It has also led to persons who get employed, without the following of a regular procedure or even through the backdoor or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned.

6. The power of a State as an employer is more limited than that of a private employer inasmuch as it is subjected to constitutional limitations and cannot be exercised arbitrarily (See: Basu's Shorter Constitution of India). Article 309 of the Constitution gives the Government the power to frame rules for the purpose of laying down the conditions of service and recruitment of persons to be appointed to public services and posts in connection with the affairs of the Union or any of the States. That article contemplates the drawing up of a procedure and rules to regulate the recruitment and regulate the service conditions of appointees appointed to public posts. It is well acknowledged that because of this, the entire process of recruitment for services is controlled by detailed procedures which specify the necessary qualifications, the mode of appointment, etc. If rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules. The State is meant to be a model employer. The Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 was enacted to ensure equal opportunity for employment seekers. Though this Act may not oblige an employer to employ only those persons who have been sponsored by employment exchanges, it places an obligation on the employer to notify the vacancies that may arise in the various departments and for filling up of those vacancies, based on a procedure. Normally, statutory rules are framed under the authority of law governing employment. It is recognized that no government order, notification or circular can be substituted for the statutory rules framed under the authority of law. This is because, following any other course could be disastrous inasmuch as it will deprive the security of tenure and the right of equality conferred on civil servants under the constitutional scheme. It may even amount to negating the accepted service jurisprudence. Therefore, when statutory rules are framed under Article 309 of the Constitution which are exhaustive, the only fair means to adopt is to make appointments based on the rules so framed."

In the above case, this Court, in para 11, further observed as under:
"11. In addition to the equality clause represented by Article 14 of the Constitution, Article 16 has specifically provided for equality of opportunity in matters of public employment. Buttressing these fundamental rights, Article 309 provides that subject to the provisions of the Constitution, Acts of the legislature may regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State. In view of the interpretation placed on Article 12 of the Constitution by this Court, obviously, these principles also govern the instrumentalities that come within the purview of Article 12 of the Constitution. With a view to make the procedure for selection fair, the Constitution by Article 315 has also created a Public Service Commission for the Union and Public Service Commissions for the States. Article 320 deals with the functions of the Public Service Commissions and mandates consultation with the Commission on all matters relating to methods of recruitment to civil services and for civil posts and other related matters. As a part of the affirmative action recognized by Article 16 of the Constitution, Article 335 provides for special consideration in the matter of claims of the members of the Scheduled Castes and Scheduled Tribes for employment. The States have made Acts, Rules or Regulations for implementing the above constitutional guarantees and any recruitment to the service in the State or in the Union is governed by such Acts, rules and regulations. The Constitution does not envisage any employment outside this constitutional scheme and without following the requirements set down therein."


This Court, in the aforesaid case, also discussed the case of Indra Sawhney & Others v. Union of India & Others reported in 1992 Supp (3) SCC 217. It is observed in this case as under:
"644. The significance attached by the Founding Fathers to the right to equality is evident not only from the fact that they employed both the expressions 'equality before the law' and 'equal protection of the laws' in Article 14 but proceeded further to state the same rule in positive and affirmative terms in Articles 15 to 18. 645. Inasmuch as public employment always gave a certain status and powerit has always been the repository of State powerbesides the means of livelihood, special care was taken to declare equality of opportunity in the matter of public employment by Article 16. Clause (1), expressly declares that in the matter of public employment or appointment to any office under the State, citizens of this country shall have equal opportunity while clause (2) declares that no citizen shall be discriminated in the said matter on the grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them.
At the same time, care was taken to declare in clause (4) that nothing in the said Article shall prevent the State from making any provision for reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the State."

These binding decisions are clear imperatives that adherence to Articles 14 and 16 of the Constitution is a must in the process of public employment. The Constitution Bench in Umadevi's case (supra) has observed that adherence to the rule of equality in public employment is a basic feature of our Constitution. It was observed as under:
"43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. The High Courts acting under Article 226 of the Constitution, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because an employee had continued under cover of an order of the court, which we have described as "litigious employment" in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates." In the instant case, the appellant has continued in service for 14 years because of the interim order granted by the High Court on 15.9.1992. In the aforesaid case, the Constitution Bench has observed that merely because an employee had continued under cover of an order of the court, which the court described as "litigious employment", he would not be entitled to any right to be absorbed or made permanent in the service. In the instant case, the appellant submitted that he has been continued in service for 14 years and is entitled for regularization. This aspect of the matter has also been specifically dealt with by the said Constitution Bench in para 45 of the judgment and it was observed as under:
"45. While directing that appointments, temporary or casual, be regularized or made permanent, the courts are swayed by the fact that the person concerned has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with open eyes. It may be true that he is not in a position to bargainnot at arms lengthsince he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible..."

An argument was made before the Constitution Bench that the State action in not regularizing the employees was not fair within the framework of the rule of law. The Court observed that if the appointments, which have not been made according to the constitutional scheme, are regularized, that would amount to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by the people of this country.
Admittedly, the appellant has not been appointed in terms of the relevant rules or in adherence to Articles 14 and 16 of the Constitution.
In Umadevi's case (supra), this Court has also dealt with another aspect of the matter and observed as
under:
"47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission."

The ratio of the aforementioned judgment is that the courts cannot encourage appointments which are made outside the constitutional scheme and it is improper for the courts to give any direction for regularization of the person who has not been appointed by following the procedure laid down under Articles 14, 16 and 309 of the Constitution. Recently, this Court again reiterated the same principle in the case of Haryana State Agricultural Marketing Board v. Subhash Chand & Another reported in (2006) 2 SCC 794. In this case also, the employees were appointed on contract basis. The Court held as under:
"It is the contention of the appellant that the respondent was appointed during the 'wheat season' or 'paddy season'. It is also not in dispute that the appellant is a statutory body constituted under the Punjab and Haryana Agriculture Produce Marketing Board Act. In terms of the provisions of the said Act, indisputably, regulations are framed by the Board laying down the terms and conditions of services of the employees working in the Market Committees. A bare perusal of the offer of appointment clearly goes to show that the appointments were made on contract basis. It was not a case where a workman was continuously appointed with artificial gap of 1 day only. Indisputably, the respondent had been re-employed after termination of his services on contract basis after a considerable period(s)."

In a recent judgment in National Fertilizers Ltd. & Others v. Somvir Singh reported in (2006) 5 SCC 493, this Court had an occasion to examine the matter after pronouncement of the aforementioned judgment by the Constitution Bench. The Court in this case has laid down that it is now trite law that "State" within the meaning of Article 12 of the Constitution is bound to comply with the constitutional requirements as adumbrated in Articles 14 and 16 thereof. When the Recruitment Rules are made, the employer would be bound to comply with the same. Any appointment in violation of such Rules would render them as nullities. It is also well settled that no recruitment should be permitted to be made through back door. In National Fertilizers Ltd. (supra), this Court referred to the decision in Union Public Service Commission v. Girish Jayanti Lal Vaghela & Others reported in (2006) 2 SCC 482, wherein the Court had observed as under:
"The appointment to any post under the State can only be made after a proper advertisement has been made inviting applications from eligible candidates and holding of selection by a body of experts or a specially constituted committee whose members are fair and impartial through a written examination or interview or some other rational criteria for judging the inter se merit of candidates who have applied in response to the advertisement made. A regular appointment to a post under the State or Union cannot be made without issuing advertisement in the prescribed manner which may in some cases include inviting applications from the employment exchange where eligible candidates get their names registered. Any regular appointment made on a post under the State or Union without issuing advertisement inviting applications from eligible candidates and without holding a proper selection where all eligible candidates get a fair chance to compete would violate the guarantee enshrined under Article 16 of the Constitution."


In Banarsidas & Others v. State of U.P. & Others [AIR 1956 SC 520], a Constitution Bench of this Court had an occasion to deal with the scope of Article 16 of the Constitution. The Court laid down that Article 16 of the Constitution is an instance of the application of the general rule of equality laid down in Article 14 with special reference to the opportunity for appointment and mployment under the Government.


We are able to discern the same ratio from the judgment of another Constitution Bench of this Court in General Manager, Southern Railway & Another v. Rangachari [AIR 1962 SC 36].

Equal opportunity is the basic feature of our Constitution. Public employment is repository of the State power. Certain status and powers emanate from public employment.


H. M. Seervai, in his celebrated book "Constitutional Law of India" has mentioned that in fact the principle of recruitment by open competition was first applied in India and then applied in England.

Our constitutional scheme clearly envisages equality of opportunity in public employment. The Founding Fathers of the Constitution intended that no one should be denied opportunity of being considered for public employment on the ground of sex, caste, place of birth, residence and religion. This part of the constitutional scheme clearly reflects strong desire and constitutional philosophy to implement the principle of equality in the true sense in the matter of public employment.


In view of the clear and unambiguous constitutional scheme, the courts cannot countenance appointments to public office which have been made against the constitutional scheme. In the backdrop of constitutional philosophy, it would be improper for the courts to give directions for regularization of services of the person who is working either as daily-wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14, 16 and 309 of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment.

In view of clear enunciation of law laid down in the recent judgment of the Constitution Bench and other judgments, we do not find any infirmity in the impugned judgment of the High Court. The appeal being devoid of any merit is accordingly dismissed. However, in the facts and circumstances of the case, we direct the parties to bear their own costs.

Monday, September 18, 2006

No back-door entry in public employment

From the Hindu
http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2006091113260100.htm&date=2006/09/11/&prd=th&

  • Temporary employees have no vested right to be regularised: Supreme Court
  • High Courts could not issue directions to regularise services in the absence of any existing vacancies
  • Adherence to the rule of equality in public employment a basic feature of Constitution
New Delhi: There is no room for back-door entry in public employment and temporary employees have no vested right to be regularised contrary to the scheme of merit and constitutional provisions, the Supreme Court has held.

A Bench consisting of Justices G.P. Mathur and Dalveer Bhandari held that the High Courts could not issue directions to regularise the services of temporary or ad hoc employees in the absence of any existing vacancies.

Cautioning the High Courts, the Bench said: ``It would be improper for the courts to give directions for regularisation of services of the person who is working either as daily-wager, ad hoc employee, probationer, temporary or contractual employee, not appointed following the procedure laid down under Articles 14 (equality before law), 16 (equality of opportunity in matters of public employment) and 309 (recruitment and conditions of service of persons serving the Union or a State) of the Constitution. In our constitutional scheme, there is no room for back door entry in the matter of public employment.''

The Bench said: ``The Union, the States, their departments and instrumentalities have resorted to irregular appointments, especially in the lower rungs of the service, without reference to the duty to ensure a proper appointment procedure and to permit these irregular appointees or those appointed on contract or on daily wages, to continue year after year, thus, keeping out those who are qualified to apply for the post concerned and depriving them of an opportunity to compete for the post.''

``It has also led to persons who get employed, without following a regular procedure or even through the back door or on daily wages, approaching the courts, seeking directions to make them permanent in their posts and to prevent regular recruitment to the posts concerned."

Writing the judgment for the Bench, Justice Bhandari said: ``It is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. A regular appointment to a post under the State or Union cannot be made without issuing advertisement and inviting applications from eligible candidates.''

Appellant Surendra Prasad Tewari was appointed by Rajya Krishi Utpadan Mandi Parishad, Uttar Pradesh, on a temporary basis and he continued in the job for 14 years based on interim directions of the court. Ultimately, the Allahabad High Court rejected his plea for regularisation. The Bench confirmed the High Court order and rejected his appeal seeking to quash the impugned judgment.

© Copyright 2000 - 2006 The Hindu

Monday, May 08, 2006

Contract not equal to regular appointments

IN THE HIGH COURT OF DELHI AT NEW DELHI



SUBJECT: SERVICE LAW-EQUAL PAY FOR EQUAL WORK



W.P.(C) No. 6587/2003 & C.W. Nos. 351-70/2005



Date of Hearing: January 27, 2005



Date of Decision: January 31, 2005



Yuvneet Kumar & Ors. ...Petitioners

Through : Mr. Pradeep Gupta, Advocate



VERSUS



M.C.D. & ORS. ...Respondents

Through : Mr. Ashok Bhasin, Advocate









VIKRAMAJIT SEN, J.



1. The Petitioners claim is that although they have been appointed on contract basis they are legally entitled to receive salaries in the scale of regular employees on the principle of equal pay for equal work.



2. The preponderant view enunciated by the Hon'ble Supreme Court is that the persons such as the Petitioners would not per se have the right to claim salaries equal to that of regular employees. Reliance has been placed by learned counsel for the Petitioners on the thought provoking decision titled Randhir Singh vs. Union of India and others, AIR 1982 SC 879. The opening paragraph deserves to be thoroughly digested for its perspicuous legal content; it also commends careful reading because of its literary excellence. In all humility the passage is reproduced:

'Equal pay for equal work' is not a mere demagogic slogan. It is a constitutional goal capable of attainment through constitutional remedies, by the enforcement of constitutional rights. So the petitioner claims; so the petitioner asserts. Article 39(d) of the Constitution proclaims, as a Directive Principle, the Constitutional goal of 'equal pay for equal work for both men and women'. Articles 14 and 19 guarantee respectively the fundamental rights to equality before the law and equality of opportunity in the matter of public employment and Art. 32 provides the remedy for the enforcement of the fundamental rights. So the petitioner has invoked the jurisdiction of this Court under Art. 32 and has asked us to direct the respondents to give him his due, the same as they have given others like him. True, he is the merest microbe in the mightly organism of the State, a little clog in a giant wheel. But, the glory of our Constitution is that it enables him to directly approach the highest Court in the land for redress. It is a matter of no little pride and satisfaction to us that he has done so. Hitherto the equality clauses of the Constitution, as other articles of the Constitution guaranteeing fundamental and other rights, were most often invoked by the privileged classes for their protection and advancement and for a 'fair and satisfactory' distribution of the buttered loaves amongst themselves. Now, thanks to the rising social and political consciousness and the expectations roused as a consequence, and the forward looking posture of this Court the underprivileged also are clamouring for their rights and are seeking the intervention of the Court with touching faith and confidence in the Court. The Judges of the Court have a duty to redeem their constitutional oath and do justice no less to the pavement dweller than to the guest of the five star hotel.

The decision, however, may not be apposite to the present case for the reason that the Hon'ble Supreme Court was not concerned with emoluments payable to contractual/ temporary/ ad-hoc employees. A comparative analysis of pay scales of drivers in the various Forces and Government Departments had been undertaken, and in these circumstances uniformity had been recommended.



3. Learned counsel for the Petitioners has also relied on Bhagwan Dass and others vs. State of Haryana and others, (1987) 4 SCC 634. In that case the Court had observed that the burden of proving similarity in nature of work is on the aggrieved temporary appointees but once the burden is discharged, the onus shifts on the Government.



4. Learned counsel for the Respondent had drawn my attention to CW 10020-31/2004 where the very same Petitioners have assailed the holding of an examination for regular appointment in respect of the posts at which they are contractually employed for a fixed tenure. It appears that two years experience is contemplated as one of the eligibility criteria and the Respondents are more than willing to consider the Petitioners contractual services as working experience in that context. Mr. Gupta, learned counsel for the Petitioner, argues that those writ petitions are on a totally distinct point the distinguishing feature being that the only question raised in the present batch of petitions is whether the Petitioners are entitled to claim monetary compensation/emoluments according to the prescribed pay scale on the application of the principle of equal pay for equal work. I am also informed that all the Petitioners have appeared in the said examination and, therefore, may be precluded from challenging its legal propriety. The Petitioners would serve their cause by paying attention to the pronouncements in Om Prakash Shukla vs. Akhilesh Kumar Shukla and Others, 1986(Supp) SCC 285, Madan Lal and Others vs. State of J & K and Others, (1995) 3 SCC 486 and Chandra Prakash Tiwari and Others vs. Shakuntala Shukla and Others, (2002) 6 SCC 127. This question does not arise in these proceedings. One can only pray that the Petitioners are successful in the examination.



5. The question which should next be considered is the nature of the rights that were created and/or evolved in favour of the Petitioners consequent on their temporary engagement. In Jaswant Singh and others vs. Union of India and others, 1980 SCC (L&S) 36, it was held that no Government servant can claim entitlement to a declaration that he is in quasi-permanent service, because that does not depend upon the mere fact of his being in service for a particular number of years. Certainly his terminal benefits could be protected. It was further observed that the Work-Charged employees are engaged on a temporary basis and are eligible to claim protection under the Industrial Disputes Act. In State of Haryana & Others vs. Jasmer Singh and others, (1996) 11 SCC 77 = AIR 1997 SC 1788, it was held that daily wagers could not be equated with regular workman and can at best claim payment of minimum wages only. A different Bench of the Hon'ble Supreme Court has made an essentially identical enunciation of the law in State of Haryana vs. Surinder Kumar, AIR 1997 SC 2129. The decision in State of Maharashtra vs. Purshottam and others, (1996) 2 SCC 266 refers to Jaswant Singh's case (supra). The Hon'ble Court observed as follows:



"6. At the outset, it may be stated that a work-charged establishment means an establishment of which the expenses, including the wages and allowances of the staff, are chargeable to `works'. The pay and allowances of employees who are borne on a work-charged establishment are generally shown as a separate sub-head of the estimated cost of the work. The work-charged establishment employees are engaged on a temporary basis and their appointments are made for the execution of a specified work. From the very nature of their employment, their services automatically come to an end on the completion of the works for the sole purpose of which they are employed. The character and nature of their tenure has been fully discussed by this Court in the case of Jaswant Singh v. Union of India. In the service jurisprudence the expression `cadre' means the unit of strength of a service or a part of it as determined by the employer. And it is too well settled that services rendered by an employee in one cadre cannot cannot be taken into account for determining the seniority in another cadre unless by any rules of seniority this privilege is conferred. This being the position, ordinarily the services rendered by an employee in a work-charged establishment is not to be taken into account for his seniority in the regular establishment particularly when the tenure in the work-charged establishment is of a precarious nature and it automatically ceases after the d project is over. The normal rule of seniority is the date of entry into the cadre or the position obtained in the examination when appointment is made by any competitive examination. Therefore, in the present case ordinarily seniority would have been determined on the basis of the date of absorption of the employee in the regular establishment, but the State Government itself has passed the resolution deciding a deemed date of absorption of the employees who were initially recruited in the charged establishment and later on absorbed in the regular establishment. Therefore, the Government of Maharashtra in the Public Works and Housing Department by its resolutions dated 15-2-1977 and 19-2-1977 decided that a Junior Engineer having work-charged service to his credit should be assigned a "deemed date" which should be one day prior to the date on which his immediate junior on work-charged establishment or from open market was appointed on regular temporary establishment in the same Circle. This deemed date obviously is the deemed date of absorption in the regular establishment and on the basis of that deemed date the seniority of the Junior Engineers in the Circle is maintained. It is undisputed that the promotion to the post of Sub-Divisional Engineer, which is a Class II post and is in the State Cadre is made from amongst the Junior Engineers. The question, therefore, that arises for consideration is whether it is open for the employer to maintain a seniority list of Junior Engineers of different Circles on the basis of their actual date of absorption in regular establishment and not on the basis of their deemed date of absorption and consider promotion on that basis? The answer must be in the negative. The promotion to the post of Sub-Divisional Engineer is made according to a set of Rules called the Maharashtra Service of Engineers, Class I and Class II Cadre Rules. Under Rule 13(c) of the said Rules, appointments to the cadre of Sub-Divisional Engineers is made by promotion from amongst Junior Engineer graduates from the Subordinate Service of Engineers. Under Rule 15, a person to be eligible for promotion to the post of Sub-Divisional Engineer must have rendered 3 years of minimum service as a Junior Engineer. Under Rule 16(a), the promotion to the post of Sub-Divisional Engineer is made by a selection from the Statewise seniority list of Junior Engineers maintained by the Irrigation and Power Department and Buildings and Communications Department, separately. But the Rule is totally silent as to how the Statewise seniority list of Junior Engineers will b drawn up. In other words, it does not stipulate that the Statewise seniority list of Junior Engineers will be drawn upto on the basis of their respective dates of absorption/employment as a Junior Engineer in regular establishment or on the basis of the deemed date which is to be determined in accordance with the two government resolutions referred to earlier. In the absence of any specific provision it would be only reasonable to construe that the Statewise seniority list has to be prepared on the basis of seniority list already prepared in the Circle indicating the respective deemed dates of each such Junior Engineer. The counsel for the appellant no doubt is fully justified in raising the contention that the two government resolutions having been specifically meant for drawing up of the seniority list in the Circle, the Tribunal erred in law in directing to draw up the seniority list by giving the benefits of those Regulations in question. But as has been stated earlier, in the absence of any provision in the Recruitment Rules the seniority list of the Junior Engineers when is prepared under Rule 16(a) for the purpose of giving promotion to the post of Sub-Divisional Engineer the same should be made taking into account the deemed date of each of the Junior Engineers in the Circle and prepare the Statewise seniority list."

In State of Rajasthan vs. Kunji Raman (1997) 2 SCC 517 the Hon'ble Court recognised that Work-Charged employees and employees on regular establishment of the PWD comprised two separate and distinct classes. It held that the claim of the Work-Charged Petitioners for granting them project allowance was misconceived and so was their claim that they should be given all benefits which are made available to regular employees. Very recently, in State of Orissa and Others vs. Balaram Sahu & Others, (2003) 1 SCC 250, the Apex Court had chartered a slightly different course in that it had stated that in connection with the claim of equal pay for equal work it is for the claimants of parity to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination. The Court also pithily observed that equal pay for unequal work also negates the right under Article 14 i.e. that regular employees may in some circumstances be performing longer and more onerous duties with greater responsibilities, when compared with daily wagers and should not be similarly treated. Jasmer Singh's case (supra) was repeatedly referred to. These views have also been voiced in Ashwani Kumar vs. State of Bihar, (1997) 2 SCC 1 and Dr. Chanchal Goyal vs. State of Rajasthan, (2003) 3 SCC 485. It would also be of advantage to note similar pronouncements made in Associated Banks Officers Association vs. State Bank of India, JT 1997 (8) SC 422 and Chief Superintendent,

Government Livestock Farm Hissar vs. Ramesh Kumar, (1997) 11 SCC 363.



7. In the present cases I am of the view that the Petitioners have failed to discharge the burden that they have performed duties identical to those of the regular employees. This would require a determination of disputed question of fact which ought not to be entertained in writ proceedings. The question is left open, and may be agitated in regular civil proceedings. Learned counsel has contended that the principles of estoppel would not arise since the Petitioners fundamental rights are in question. It will be recalled that the Petitioners had voluntarily accepted contractual employment. The argument does not commend itself because it is not a fundamental right that a person should not be employed on a contract for a fixed term and salary.



8. For these reasons these writ petitions are dismissed with no order as to costs.



January 31, 2005 (VIKRAMAJIT SEN)

JUDGE

Tuesday, April 25, 2006

AlPG 2nd Councelling SC WP(Civil) No.157/2005 2006 04 17

ITEM NO.68 COURT NO.3 SECTION X

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

IA NO.3, IA NOS. 1,2,4,5,6,7 AND IA ..... IN IA NO.3 IN WRIT PETITION (CIVIL) NO(s). 157 OF 2005

AMIT GUPTA & ORS. Petitioner(s)

VERSUS

UNION OF INDIA & ORS. Respondent(s)

(With appln(s) for directions, impleadment, directions/clarification, impleadment, intervention,intervention/direction, impleadment/ intervention)


Date: 17/04/2006 This Petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE K.G. BALAKRISHNAN

HON'BLE MR. JUSTICE MARKANDEY KATJU


For Petitioner(s)

Mr. Arun Jaitley, Sr. Adv.

Ms. Indu Malhotra, Adv.

Mr. Vikaram Mehta, Adv.

Mr. Vikas Mehta, Adv.


For Respondent(s)

Mr. Maninder Singh, Adv.

Ms. Pratibha M. Singh, Adv.

Mr. Saurabh Mishra, Adv.


For UOI Mr. Gopal Subramanium, ASG

Mr. T.S. Murthy, Adv.

Ms. Sandhya Goswami, Adv.

Ms. Sushma Suri, Adv.


M/s. K.L. Mehta & Co., Adv.

Mr. Subramonium Prasad, Adv.

Mr. M.C. Dhingra, Adv.

Mr. E.C. Vidyasagar, Adv.

Mr. Abhijat P. Medh, Adv.


For intervenor Mr. Subodh Markandeya, Sr. Adv.

Ms. Chitra Markandey, Adv.


Ms. Vibha Arora, Adv.

Mr. Vinod Chauhan, Adv.


St. of Maharashtra Mr. Ravindra K. Adsure, Adv.

St. of U.P. Mr. Dinesh Divedi, Adv.

Mr. Manoj Misra, Adv.

Mr. Raj Singh Rana, Adv.



UPON hearing counsel the Court made the following

O R D E R



Heard both the parties. The revised time-schedule produced by Mr. Gopal Subramanium, ASG is accepted with a modification that the second counselling shall not be confined only to the wait-listed candidates. This time- schedule has been approved in the peculiar facts of this case.

( RAVI P. VERMA ) ( VEERA VERMA )

Court Master Court Master

Monday, April 10, 2006

AlPG 2nd Councelling SC WP(Civil) No.157/2005 2006 04 10

ITEM NO.MM-2 COURT NO.3 SECTION X




S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS




I.A.NO.3/2006 in WRIT PETITION (CIVIL) NO(s). 157 OF 2005




AMIT GUPTA & ORS. Petitioner(s)


VERSUS


U.O.I. & ANR. Respondent(s)




(With appln(s) for Impleadment)




Date: 10/04/2006 This Petition was mentioned today.




CORAM :

HON'BLE MR. JUSTICE K.G. BALAKRISHNAN

HON'BLE MR. JUSTICE P.P. NAOLEKAR





For Petitioner(s) Mr.Vikas Mehta,Adv.

Mr.E.C.Vidyasagar, Adv.(Mentioned by)




For Respondent(s) Mr. Maninder Singh,Adv.



Mr. M.C. Dhingra ,Adv


M/S K.L. Mehta & Co. ,Advs


Ms. Sushma Suri ,Adv


Mr. Subramonium Prasad ,Adv




UPON hearing counsel the Court made the following

O R D E R




List the I.A. along with the main matter.





(G.V.Ramana) (Veera Verma)


Court Master Court Master


(Mentioned slip enclosed)

Thursday, April 06, 2006

TNPSC can publish results of exams

From http://www.indlawnews.com/D620039FA7ECF1C8B55202E115DF54DC and http://www.chennaionline.com

Madras High Court today disposed of a Public Interest Litigation (PIL) seeking a direction to the Chief Electoral Officer (CEO) to refrain from issuing any instructions, directions or orders to the Tamil Nadu Public Service Commission (TNPSC) with regard to publication of results for various examinations conducted by it.

A Division Bench comprising Chief Justice A P Shah and Ms Justice Prabha Sridevan disposed of the PIL filed by one S Prabhakaran after a submission from Senior Counsel D Rajagopalan, appearing for the Election Commission (EC), the EC will have no objection if the TNPSC published the list of candidates and forwarded it to the state government.

Following the submission, the Bench said after receiving the list, it will be open for the government to approach the EC for making appointments, in which case, the Commission will pass appropriate orders.

In view of Mr Rajagopalan's statement, no orders were necessary on the petition, the Bench added.

In his petition, Mr Prabhakaran submitted he came across a news item in a daily in which it was stated the CEO had issued directions to the TNPSC not to publish the results of the examinations already conducted by it till the elections in the state were completed.

Conducting the examination and publishing the results was a duty cast upon the TNPSC and such Constitutional duty cannot be curtailed or interfered with by the EC which was another Constitutional body.

The Model Code of Conduct was meant only for the executive and political parties. Under the guise of enforcement of the code, the EC shall not transgress on the powers and functions of another independent Constitutional body by attributing to itself a power not vested in it by the Constitution, he contended.

(UNI)

A PIL filed in the Madras High Court, seeking a direction to the Chief Electoral Officer to refrain from issuing any instruction, direction or order to the Tamil Nadu Public Service Commission (TNPSC) with regard to publication of results of the examinations conducted for filling up 1,800 vacancies of doctors, was disposed of today.

The petition, filed by one S Prabhakaran, was disposed by a division bench comprising Chief Justice A P Shah and Justice Prabha Sridevan as EC's Senior Counsel Rajagopalan, said EC had no objection if the TNPSC finalised and published the list of candidates and forwarded the same to the State Government.

The bench said the EC's counsel had also submitted that after receiving the finalised list, it would be open for the government to approach the EC for making appointments. In view of this no order was necessary in the petition, it said.

In his petition, Prabhakaran submitted that he came across newspaper reports which stated that the Chief Electoral Officer stated that he had issued directions to the TNPSC not to publish any result of the examinations already held by it until the state assembly polls were over.

Holding examination and declaring results were the duties of the TNPSC and such a constitutional duty cannot be curtailed or interfered with by the EC.

The EC shall not transgress into the powers and functions of another independent constitutional body by attributing to itself a power, not vested upon it by the constitution, he contended.