Tag Archives: department of Personnel

Supreme Court order of July 2014: GOI takes steps for providing consequential benefits to SC/ST officers

Newsroom24x7 Staff

New Delhi: The Department of Personnel and Training, under the Government of India Ministry of Personnel, Public Grievances and Pensions, today issued an office Memorandum drawing attention of various Departments and Ministries towards the missing and non-availability of Annual Performance Appraisal Report – APAR for the period 2008-09 to 2015-16.

The Office Memo has been issued by DoPt for implementation of Supreme Court Judgement of 15 July 2014 in response to a Civil Appeal of 2004 for providing consequential benefits to SC/ST officers.

On 23 December 1970, the Department of Personnel had issued an office memorandum bearing [O.M. No. 8/12/69-Estt. (SCT)] relaxing standards in the case of Scheduled Castes/Tribes candidates in departmental ompetitive examinations and in departmental confirmation examinations.

This O.M. remained operative for about 17 years until another O.M. [No. 36012/23/96 Estt.(Res) dated 22 July 1997] was issued withdrawing instructions contained in the 1970 O.M. Thereafter another notification was issued on 30 November 1998, the Central Secretariat Service Section Officers’ Grade/Stenographers’ Grade ‘B (Limited Departmental Competitive Examination) Regulations, 1964 were amended by Central Secretariat Service Section Officers’ Grade/Stenographers’ Grade ‘B (Limited Departmental Competitive Examination) Amendment Regulations, 1998.

The result of this amendment was that in 1964 Regulations, Regulation 7, sub-regulation (3) was omitted from 22 July 1997 onwards.

The explanatory note attached with this Notification read as follows:

“In compliance with the Supreme Court’s judgment in the case of S. Vinod Kumar vs. Union of India, the Central Government has decided to omit the provisions of regulation 7(3) of the Central Secretariat Service Section Officers’ Grade/Stenographers’ Grade ‘B’ (Limited Departmental Competitive Examination) Regulations, 1964 which provides for relaxed qualifying standard in favour of the Scheduled Castes and the Scheduled Tribes candidates to make up the deficiency in the reserved quota which has been rendered legally invalid and unenforceable. This is certified that no one is being adversely affected by giving this amendment retrospective effect.”

In the Rohtas Bhankar and others versus Government of India and others case, a five Judge Constitution Bench of the Supreme Court, comprising Chief Justice of India R.M. Lodha, and Justices Jagdish Singh Khehar (the present Chief Justice of India), J Chelameswar, AK Sikri and Rohinton Fali Nariman, passed an order on July 15 2014 reiterating that the ceiling limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

The main issue concerns the “extent of reservation”. The State concerned will have to show in each case the existence of the compelling reasons, namely, backwardness inadequacy of representation and overall administrative efficiency before making provision for reservation. Emphasising that the impugned provision is an enabling provision. The State is not bound to make reservation for SCs/STs in matters of promotions, this order says adding however, if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance with Article 335. The Supreme Court also made it clear through this order that even if the State has compelling reasons, it will have to see that its reservation provision does not lead to excursiveness so as to breach the ceiling limit of 50% or obliterate the creamy layer or extend the reservation indefinitely. – Supreme Court order of July 2014

Subject to these conditions, the Supreme Court upheld the constitutional validity of the Constitution (seventy-seventh Amendment) Act, 1995; the Constitution (eighty-first Amendment) Act, 2000; the Constitution (eighty-second Amendment) Act, 2000 and the Constitution (eighty-fifth Amendment) Act, 2001.

The Supreme Court order of July 2014 says: “We do not think, it is necessary for us to deal with the width and scope of Article 16(4A) any further. Insofar as Kuldeep Singh is concerned, we find that the matter was decided by this Court having regard to the constitutional provision contained in Article 16 (4A). The view taken by this Court in Kuldeep Singh is in accord with constitutional scheme articulated in Article 16(4A). On the other hand, in S. Vinod Kumar, the Court failed to consider Article 16(4A). As a matter of fact, Article 16(4A) was inserted in the Constitution to undo the observations in Indra Sawhney that there can not be dilution of standards in matters of promotion.

The five-judge Bench was also in agreement with the decision in Kuldeep Singh case and approved it. Ordinarily, the July 2014 order said: ” we would have sent the matter to the Regular Bench for disposal of the matter but having regard to the nature of controversy and the fact that the Central Administrative Tribunal, Delhi has followed (the order in) S. Vinod Kumar which is not a good law and resultantly 1997 O.M. is also illegal, in our view, the agony of the appellants need not be prolonged as they are entitled to the reliefs.

Consequently, civil appeals were allowed. The impugned order was set-aside. 1997 O.M. was declared illegal. Government of India was directed to modify the results in the Section Officers/Stenographers (Grade B/Grade-I) Limited Departmental Competitive Examination, 1996 by providing for reservation and extend all consequential reliefs to the appellants.

The order said, while passing the judgement in the S. Vinod Kumar case, the court did not take into consideration the constitutional provision that Article 16(4A) had been brought into Constitution by the Constitution (Seventy seventh Amendment) Act, 1995 with effect from 17 June 1995. Hence the five Judge Bench on 15 July 2014 pronounced that S. Vinod Kumar’s is per incuriam – implying thereby that it is a judgment which has been decided without reference to a statutory provision.

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In its July 2014 judgement, the Apex Court also underscored the Constitution (Eighty second Amendment) Act, 2000, a proviso attached to Article 335 of the Constitution with effect from 8.9.2000. The proviso reads as follow:

“Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connect with the affairs of the Union or of a State.”

Furthermore the July 2014 order also focuses attention on SLPs of 8 October 1999, from which arose and came up for consideration before a two-Judge Bench the matter whether it was permissible for the authorities to fix lesser number of qualifying marks for reserved candidates in the matter of ‘promotion’. That Bench took up for consideration three judgments of the apex Court:

(1) Indra Sawhney
(2) S. Vinod Kumar and
(3) Kuldeep Singh

The Court observed that in Kuldeep Singh case the Court did not notice the observations of majority as well as observations of Justice Sawant, in Indra Sawhney case and the matter required to be heard by a three Judge Bench.

On 2 December 1999, the matter came up before a three-Judge Bench. The Bench on that day reiterated what was earlier stated by the two-Judge Bench in the order 8 October 1999 that in Kuldeep Singh case, the Bench had not referred to the majority decision in Indra Sawheny case. The Bench, therefore, doubted the correctness of the decision in Kuldeep Singh case and referred the matter to the Constitution Bench.

In the reference order, the three-Judge Bench also noted the decision of the Supreme Court in Haridas Parsedia and others versus Urmila Shakya and others case [Civil Appeal Nos. 6590-6592 of 1999 etc.) of 19 November 1999, wherein it was observed that in the case of departmental promotion examination, which is held exclusively for SCs/STs, there could be reduction to the extent of 10% in the passing marks. As regards Haridas Parsedia, the Bench observed that in that case, the observations of Supreme Court in Indra Sawhney case, wherein it was laid down that there cannot be dilution of standards in matter of promotion was not noticed.

In the July 2014 order, Supreme Court said it is important to note that the constitutional validity of Article 16(4A) came up for consideration before the Constitution Bench in the case of M. Nagaraj case.

The Constitution Bench observed:

“Clause (4-A) of Article 16 is carved out of clause (4) of Article 16. Clause (4-A) provides benefit of reservation in promotion only to SCs and STs. In S. Vinod Kumar v. Union of India this Court held that relaxation of qualifying marks and standards of evaluation in matters of reservation in promotion was not permissible under Article 16(4) in view of Article 335 of the Constitution. This was also the view in Indra Sawhney.”

By the Constitution (eighty-second Amendment) Act, 2000 a proviso was
inserted at the end of Article 335 of the Constitution which read as under :

“Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters of promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.”

The Apex court noted in the 2014 order that this proviso was added keeping in view the benefit of reservation in promotion conferred upon SCs and STs alone. This proviso was inserted keeping in mind the judgment of this Court in Vinod Kumar case which took the view that relaxation in matters of reservation in promotion was not permissible under Article 16(4) in view of the command contained in Article 335. Once a separate category is carved out of clause (4) of Article 16 then that category is being given relaxation in matters of reservation in promotion. The proviso is confined to SCs and STs alone. The said proviso is compatible with the scheme of Article 16(4-A).

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Significantly, the Constitution Bench also pointed out in its 2014 order that the conclusions recorded by the Constitution Bench in M. Nagaraj case also were relevant.

They read as under:

“The impugned constitutional amendments by which Articles 16(4-A) and 16(4-B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBCs on one hand and SCs and STs on the other hand as held in Indra Sawhney, the concept of post-based roster with inbuilt concept of replacement as held in R.K. Sabharwal case.”

The Supreme Court in its order of 11 March 2010 ordered that the batch of writ petitions, pending before the Supreme Court, challenging various orders/notifications issued under Article 16(4)(A) of the Constitution, were disposed of, by the Supreme Court vide order dated 11th March, 2010, in the following terms:-

“The Constitution of India was amended by the Seventy-Seventh Amendment Act, 1995, Eighty-fifth Amendment Act, 2001 and Eighty-first Amendment Act, 2000. By these Acts Article 16(4), (4-A) and 16(4-B) were amended. Thus Seventy-Seventh Amendment Act, 1995 and Eighty-fifth Amendment Act, 2001 came into effect w.e.f. 16.06.1995 and Eighty-first Amendment Act, 2000 came into effect on 09.06.2000. Subsequent to these Amendments of the Constitution various State Government issued order/notifications to implement the provisions of the Constitution. These notifications/orders were challenged in various writ petitions and special leave petitions before this Court. In these proceedings the constitutional amendments were also challenged. By the decision of the Constitution Bench of this Court in M. Nagaraj and others vs. Union of India and others reported in (2006) 8 SCC 212, the constitutional validity of Article 16(4), (4-A) and (4-B) was upheld. In the judgment it was directed that various individual writ petitions would be considered by appropriate Bench in accordance with the law laid down in this decision. As various state orders and notifications have been challenged in these writ petitions be considered by the respective High Courts. The validity of the same be decided in view of the final decision of the Constitution Bench of this Court in M. Nagaraj and others vs. Union of India and others (supra).
Therefore, we permit the petitioners in these writ petitions to withdraw these writ petitions with liberty to move the High Court and in the event of writ petitions are filed before the High Court the same may be considered by the High Court in the light of the observations made by this Court in M. Nagaraj and others vs. Union of India and other (supra). The petitioners would be at liberty to seek appropriate interim relief in the High Court. The writ petitions as well as contempt petitions are disposed of accordingly”.

Earlier in the M Nagraj case, the Supreme Court on 19 October 2006 had ordered:

The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in Indra Sawhney5 , the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal8.

We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.

However, in this case, as stated, the main issue concerns the “extent of reservation”. In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.

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Subject to above, we uphold the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001.

We have not examined the validity of individual enactments of appropriate States and that question will be gone into in individual writ petition by the appropriate bench in accordance with law laid down by us in the present case.

 

 

GoI transfer and posting orders this week

Newsroom24x7 Desk

north blockNew Delhi: The Department of Personnel and Training, Government of India issued the transfer and posting orders for a dozen officers belonging to the All India Services, including the IAS, during this week.

The posting details are as follows:

S.No.

Order No. & Date

Concerned Officer(s) Details

View

1.
No. 3/1/2015-EO (MM-I)
17/04/2015
C. Sudharsan Reddy, Indian Administrative Service, XX, 2002                            

2.
6/10/2010-EO(MM-I)
16/04/2015
Venkata Dharma Reddy Alla, Indian Defence Estate Service, 1991                            

3.
18/7/2014-EO(MM-I)
16/04/2015
Vinish Chaudhary, Indian Revenue Service (C&CE), 2001                            

4.
18/11/2014-EO(MM-I)
16/04/2015
Harish Kumar Vashisth, Indian Revenue Service (C&CE), 2001                            

5.
12/2/2015-EO(MM-I)
16/04/2015
Preet Pal Singh , Indian Forest Service, JK, 2000                            

6.
5/1/2015-EO(MM-I)
16/04/2015
Sudeep Shrivastava, Indian Railway Service of Signal Engineers, 2001                            

7.
27/11/2015-EO(SM-I)
15/04/2015
Sanjay Bandopadhyaya , Indian Administrative Service, MP, 1988                            

8.
No. 4/8/2015-EO(MM-I)
15/04/2015
Deepika Pokharna, Indian Telecom Service, 1997                            

9.
No. 3/1/2015-EO (MM-I)
15/04/2015
C. Sudharsan Reddy, Indian Administrative Service, AP, 2002                            

10.
36/2/2015-EO(SM-I)
14/04/2015
Ramesh Abhishek, Indian Administrative Service , BH , 1982                            

11.
27/17/2014-EO(SM-I)
13/04/2015
C Chandramouli, Indian Administrative Service, TN, 1985                            

12.
4/25/2012-EO(MM.I)
13/04/2015
Khagesh Garg, Indian Telecom Service, 2000                            

GoI draws chief secretaries’ attention to Supreme Court guidelines regarding sanction for prosecution

Newsroom24x7 Desk

Supreme Court of IndiaNew Delhi: The Department of personnel and Training of Government of India has written to all State Chief Secretaries and Union territory Administration drawing attention to a Supreme Court Judgement of 2013 wherein the apex court has issued guidelines and observed that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction for prosecution under the prevention of Corruption Act, 1988 only after having full knowledge of the material facts of the case.

The Supreme Court, in response to Criminal Appeal no.1838 of 2013 in the matter of Central Bureau of Investigation Vs. Ashok Kumar Aggarwal has categorically observed that grant of sanction is not a mere formality. The Government of India letter to State chief secretaries draws particular attention to para 8 of the Supreme Court judgement.

The Supreme Court Judgment says:

There is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. Sanction lifts the bar for prosecution.
Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty.

The Government of India letter to chief secretaries of all Stats especially draws notice to para 8 of the judgement, where the Supreme Court has issued guidelines that need to followed with complete strictness by the competent authorities while considering grant of sanction.

The guidelines are:

(a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses,
recovery memos, draft charge sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority mayrefuse sanction.

(b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.

(c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the
sanction is sought.

(d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

(e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the
sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.

The judgement came after the supreme Court preferred an appeal against the impugned judgement and order passed by High Court of Delhi on October 3, 2007 allowing criminal writ petition 589/2007, setting aside the order of 2007 passed by the court of Special judge , CBI, by which and where under the Special judge rejected the application of the respondent questioning the sanction granted by the competent authority under Section 19 of PCA, 1988, observing that the issue could be examined during trial.

In the case in point, the apex court preferred appeal against the impugned judgement and order passed by High Court of Delhi on October 3, 2007 crimunal writ petition 589/2007, setting aside the order of July 28, 2007 passed by the court of Special judge , CBI, by which the Sepcial judge rejected the application of the respondent questioning the sanction granted by the competent authoirity under Section 19 of Prevention of Corruption Act, 1988, observing that the issue could be examined during trial.

In view of this, Th apex court observe: “we are of the considered opinion that the peculiar facts and circumstances of the case do not warrant any interference and the appeal is dismissed. However, before parting with the case, we clarify that the trial court will proceed without being influenced by any observation made hereinabove as we have considered the facts of the case only to decide this appeal. In the facts and circumstances of the case, as the matter
remained pending before the court for a long time, we request the learned Special Judge to proceed with the matter from the stage when the stay operated and conclude the same at the earliest.

CBI had registered a preliminary inquiry against Ashok Kumar Aggarwal for disproportionate assets to the tune of Rs.8,38,456 on September 17, 1999. After conclusion of the preliminary inquiry, a regular case was registered on December 7, 1999 as FIR No. S19/E0006/99 in respect of assets to disproportionate to the known sources of income to the tune of Rs.40,42,23,478.

During the course of investigation, it came to light that disproportionate assets were to the tune of Rs.12,04,46,936, which was 7615.45 times of his known sources of income. It further surfaced that the respondent was involved in money laundering; and for channelising his allegedly ill-gotten wealth, had established a number of companies wherein his family members were the founding directors.

The CBI sent a letter to the Ministry of Finance dated on May 24, 2002 for accord of sanction for prosecution of the accused. This was accompanied by the Superintendent of Police’s report of 163 pages containing a detailed gist of the relevant statements and documents including the information on income tax returns. The Central Vigilance Commission after examining the case advised the Ministry of Finance to grant sanction for prosecution.

The Investigating Officer visited the Directorate of Income Tax (Vigilance) in September 2002 and placed necessary documents for the perusal of the Additional Director, Income Tax (Vigilance) who was seized of the matter pertaining to the sanction for prosecution of the accused officer. The Finance Minister accorded sanction on November 2, 2002 and the sanction order was issued on November 26, 2002 with the signature of the Under Secretary (V&L), Ministry of Finance.

A charge sheet was filed by the CBI before the Court of Special Judge on December 5, 2002 and the court took cognizance and issued summon to the accused on January 10, 2003, who challenged the validity of the sanction by filing an application on May 1, 2003 and a similar application was again filed on September 12, 2005. The Special Judge CBI court heard these applications
and dismissed them on July 28, 2007, holding that it was not the appropriate stage to decide as to whether sanction granted by the competent authority was invalid.

After this the officer facing prosecution filed a Revision Application under Sections 397, 401 read with 482 of Code of Criminal Procedure, 1973 for setting aside the order of the Special Judge. The petition was contested by the CBI. However, the High Court gave an order setting aside the order of the Special Judge and remanded the case to record a finding on the question of any failure of justice in according sanction and to examine the sanctioning authority, as a witness even at pre-charge stage (if it deemed fit).

The Supreme Court, in response to the appeal by the CBI against the High Court order has observed in its judgement that “Undoubtedly, the stage of examining the validity of sanction is during the trial and we do not propose to say that the validity should be examined during the stage of inquiry or at pretrial stage.”

The apex court also observed: “We do not find any force in the submission made by (Ram) Jethmalani, learned senior counsel that as the matter is about one and a half decade old and the respondent has already suffered because of protracted legal proceedings at various stages before different forums,it is warranted that prosecution against him be closed altogether. This Court has consistently held that no latitude can be given in the matter of corruption.

DRDO chief’s contract stands terminated from Jan 31

Newsroom24x7 Desk

drdoNew Delhi, Jan. 13: The appointments committee of the Cabinet today approved the termination of the contract of Avinash Chander, Secretary department of Defence Research and Development-cum Director General Defence Research and Development organisation and Scientific Advisor to the Defence Minister with effect from january 31, 2015

The department of Personnel, Government of India today issued another order appointing Mukesh Kumar of Indian telecom Service (1995) as Director in the Central Vigilance Commission for a period of five years