Government servants: India (legal issues, rules)

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The government’s power to retire government servants in the public interest; Graphic courtesy: The Times of India, January 28, 2016

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Contents

Corrupt. criminal government servants

SC: Assets of corrupt can be seized before conviction

The Times of India, Dec 11 2015

AmitAnand Choudhary

Assets of graft accused can be seized before conviction

 The Supreme Court ruled that the government can bring special laws to control corruption, which it said was eating away the fundamental core of elective democracy and Constitutional governance. A bench of Justices Dipak Misra and Prafulla C Pant upheld laws passed by Bihar and Odisha assemblies authorising the probe agencies to confiscate ill-gotten properties, including houses of corrupt public officials, even before their conviction in graft cases. The law was framed to deal with cases involving those occupying high public or political office.

The bench held that there were no infirmities in the law and turned down a bunch of petitions filed by those whose properties had been confiscated. “In a way , corruption becomes national economic terror. This social calamity warrants a different control, and hence, the legislature comes up with special legislation with stringent provisions,“ it said. The accused pleaded that they could not be treated as a `special class' for alleged involvement in corruption cases and should be treated like other accused.

“ ...in the context of the present Orissa Act, it is associated with high public office or with political office that are occupied by people who control the essential dynamics of power -which can be a useful weapon to amass wealth adopting illegal means. In such a situation, the argument that they were being put in a different class and should be tried in a separate special court solely because of the alleged offence, if nothing else, is a self-defeating one,“ the bench said.

“We are unable to accept the submission of the learned counsel for the appellants that the words high public or political office not being defined creates a dent in the provision. The said words, we are absolutely certain, con vey a category of public ser vants which is well under stood and there is no room for arbitrariness,“ it said.

Referring to its earlier ver dicts, the SC said immoral ac quisition of wealth destroys the energy of the people be lieving in honesty , and history records with agony of how they suffered. It said there should be zero tolerance to wards any kind of corruption “A democratic republic polity hopes and aspires to be governed by a government which is run by the elected representatives who do not have any involvement in seri ous criminal offences or offences relating to corruption casteism, societal problems affecting the sovereignty of the nation and many other offences,“ the bench said.

It said corruption should not be judged by degree as corruption causes disorder destroys societal will to progress and paralyses the eco nomic health of a country.

Recovery of bribe money not enough to convict a government servant: Supreme Court

The Times of India, Sep 17, 2015

Amit Anand Choudhary

A government official cannot be convicted under corruption charges merely on the basis of recovery of bribe money and it is essential to prove that he had demanded money, the Supreme Court has ruled.

A bench of Chief Justice H L Dattu and Justices V Gopala Gowda and Amitava Roy said the proof of demand is an "indispensable essentiality" for establishing an offence of bribe and acquitted an assistant director of technical education department of Andhra Pradesh despite allegedly being caught red-handed for taking Rs 500 bribe in 1996.

"The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof ... would thus not be sufficient to bring home the charge under these two sections of the Act," it said.

The court said mere recovery of money would not prove the charge and it has to be proved that the accused had demanded the bribe and had voluntarily accepted the money.

"Mere possession and recovery of currency notes from an accused without proof of demand would not establish the offence. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved," the court said while referring to its verdict.

"As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder," said Justice Roy, who wrote the judgement for the bench.

While acquitting the accused in the 19-year old case, the bench said the anti-corruption bureau, which had laid a trap and caught the official with phenolphthalein powder-coated currency notes, failed to prove that demand for the money was made by him.

"Though, a very spirited endeavour has been made by state counsel to co-relate statement of witness to the attendant facts and circumstances including the recovery of this amount from the possession of the appellant by trap team, identification of currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the appellant, we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt," the court said.

Criminal offences by government servants

Criminal offences by babus should draw life term: HC

Shibu Thomas | TNN

From the archives of The Times of India 2007, 2009

Mumbai: A tougher law is needed to punish corrupt babus, Bombay High Court has said in an important order. Justice AB Chaudhari has recommended to the Union government to bring about changes in the Prevention of Corruption Act to provide for a maximum punishment of life imprisonment for criminal offences committed by government officials.

‘‘Offences by public servants, bankers of various types of banks/financial institutions holding public money or those holding key posts in important public organisations have increased in unimaginable proportion as there is hardly any deterrent punishment,’’ said Justice Chaudhari, adding in exceptionally strong words, ‘‘Looking at the upsurge in the cancer of corruption in the country, the only way to have deterrent is now to provide life imprisonment in the Prevention of Corruption Act.’’

As per existing provisions in the PCA, a government officer held guilty can be awarded a maximum imprisonment of seven years, which the HC felt was not enough. The court’s remarks came during the hearing of a petition filed by an IAS officer, Akola municipal commissioner Giridhar Kurve (54), who had urged the court to quash a criminal complaint against him. Dismissing his plea, the HC asked the police to investigate the alleged fraud.

The court further asked the Centre to have a relook at the procedures where offences under IPC involving criminal breach of trust committed by a public servant (Section 409) go to the magistrate’s court. Since the magistrate cannot award a prison term of more than three years, the HC has directed the government to consider sending such matters to the sessions court which has the powers to award life imprisonment.

The case relates to a decision by Kurve to deposit Rs 1.30 crore in the Vidarbha Urban Cooperative Bank in March 2009. A month later the bank shut down. A private complaint was lodged against the commissioner and following the court’s intervention an FIR was registered against Kurve. The municipal commissioner claimed he had followed rules, but the court refused to accept this pointing out that the Vidarbha bank was not in the list of banks where a commissioner was allowed to deposit public funds.

‘‘Prima facie, there appears to be a clear cut nexus between Kurve and somebody to dupe Akola Municipal Corporation,’’ said the judge. The judge also asked the state to reconsider its decision to allow public money to be parked in cooperative banks.

Convicted Government officials to pay compensation from salaries

The Times of India, Nov 08 2015

Sana Shakil

Babus can be told to pay damages from salary 

Government officials convicted of wrongdoing can be told to pay compensation from their own salaries, a court has ruled. Government institutions have often been sued for lapses or inaction and made to compensate victims, but it is unprecedented for individual officials to be told to pay the aggrieved parties from their own pockets.

The Delhi court gave the order on a petition filed by two Burari residents against the Delhi chief secretary and sub-divisional magistrate of Civil Lines after the administration demolished their farm's boundary wall, citing “non-agricultural activity“.

While giving its verdict, the court referred to various Supreme Court judgments that state action can be taken against public servants if they abuse their office. “It is time that public servants be held personally responsible for their mala fide acts in the discharge of their functions. Public servants have to be made liable for damages for malicious, deliberate or injurious wrong-doing,“ additional district judge Kamini Lau said.

The case referred to authorities bringing down a wall on a property though permission had been taken from the SDM. atpal and Yashpal told the court that they built the wall in December 1993 -after taking permission from the SDM -to protect their property from encroachment and save their crops from animals. The administration pulled it down without serving a notice, they said.

The accused officials alleged that Satpal and Yashpal broke the law when they built the wall and cited an inspection by a revenue director to accuse them of using their agricultural land for industrial purposes.Satpal and Yashpal contested this version and told the court that they filed an RTI in 2010 to know why their wall was razed but got no reply . In response to the RTI, the officials had said that the files were missing. The court found merit in the petitioners' submissions and termed the allegations levelled by the officials as “vague“. “The construction of a boundary wall cannot be treated as nonagricultural use of the property. The allegations (of running a factory on farmland) are vague... that the land in question was being put to non-agricultural use,“ the court said, noting the officials withheld information from the duo despite being asked by the chief information commissioner to reply to them.Also, if the files were indeed missing, there was no effort to trace them, the court said.

“There was total departmental reluctance... The relevant file and documents went missing and... have not even been placed before this court,“ the judge said, ordering the government to file an FIR and identify the officials were responsible for misplacing the file. The judge granted a compensation of Rs 3 lakh to the petitioners “to be paid from the public funds and then recovered from the erring officers...“

Education of children

2015: UP HC: Send officials' children to govt schools

The Times of India, Aug 19 2015

Send officials' kids to govt schools: HC

The Allahabad high court took a serious note of the pathetic condition of primary schools in the state and directed the chief secretary to ensure that childrenwards of government officialsservants, those serving in the local bodies, representatives of people and judiciary , etc., send their wards to these schools. Only then would they be serious enough to look into the requirements of these schools and ensure that they are run in good condition, the court observed.

Hearing a slew of writ petitions filed by Umesh Kumar Singh and several others, Justice Sudhir Agarwal directed the chief secretary to take steps within six months so as to make the aforesaid directions effective from the next academic session of primary schools.

The court also directed him to submit a compliance report immediately after the lapse of six months.

The issue involved in the writ petitions was with regard to appointment of assistant teachers in state's primary schools.

During the course of hearing, the court noticed the deplorable condition of these schools and observed that although they are catering to the needs of 90% population of children, their condition could be described as shabby.

The court further observed that as the officials responsible for running these primary schools are treating them in a shabby manner, these schools have given rise to multiple litigations.


Foreign assignments

Not for those who fail to join as CVO’s : Centre

Daily Excelsior , No foreign job for babus who fail to join as CVO’s : Centre "Daily Excelsior" 18/11/2015

Failure to take up the appointment as Chief Vigilance Officers (CVOs), who act as distant arm of CVC to check corruption in a Government organisation, will debar an officer for five years from being considered for foreign assignments, the Centre said today.

It has sought nominations of suitable officers for posting as CVOs in central public sector enterprises and in other Government organisataions against the existing vacancies and those likely to arise in next fiscal.

The CVOs are authorised to decide upon the existence of vigilance angle in a particular case at the time of registration of complaint besides screening them before they are referred to CBI. They also monitor corruption, malpractices and misconduct on the part of employees and to take remedial action.

“Failure to take up the appointment on the part of the officer will lead to debarment for 5 years along with its attendant consequences. It is also pointed out that it is not only the failure to take up the appointment, but also withdrawal after a panel has been drawn up by the Department, that leads to debarment for 5 years.

“It is, therefore, important that only applications of willing officers are forwarded,” an order issued by the Department of Personnel and Training (DoPT) to all secretaries of Central Government ministries and chief secretaries of states said.

If an officer does not join within one month of issue of his appointment order, his appointment would be treated as cancelled and the officer concerned would stand debarred from central deputation for a period of five years from the date of issuing of orders of his appointment, it said.

“Further, the officer would also be debarred from being considered for deputation on foreign assignments or consultancies abroad during the period of debarment.

“The officers who are debarred from central deputation should not be sponsored for consideration for these posts till they complete their debarment period and become eligible for re-consideration,” the order said.

The nominations have been sought for 25 posts of CVOs, at the level of Joint Secretary and Director, which are likely to fall vacant in 2016-17.

On selection, the officer would be eligible for an initial deputation tenure of three years in a CPSE or in an organisation which is extendable – for a further period of two years in the same organisation (total 5 years) or for a further period of three years on transfer to another organisation on completion of initial tenure. (PTI)

Income from lawful sources

Gifts are not lawful income

Dhananjay Mahapatra, Public servants can't show gifts as income from legal sources, says SC, Feb 16, 2017: The Times of India


In its judgment deflating Sasikala's ambition to become CM of Tamil Nadu, the Supreme Court has dealt a blow to gift-loving public servants by ruling that presents could not be counted as income from lawful sources.

A bench of Justices Pinaki Chandra Ghose and Amitava Roy said: “Gifts to Jayalalithaa, a public servant in the context of Sections 161 to 165A of Indian Penal Code now integrated into the Prevention of Corruption Act, are visibly illegal and forbidden by law.The endeavour to strike a distinction between `legal' and `unlawful' as sought to be made to portray gifts to constitute a lawful source of income is thus wholly misconstrued.“

The bench added: “With the advent of the PC Act, 1988, and consequent upon the expansion of the scope of definition of `public servant' and the integration of Section 161 to 165A IPC in the said statute, the claim of the defence to treat the gifts offered to Jayalalithaa on her birthday as lawful income, thus cannot receive judicial imprimatur.“

The court was informed by the counsel for Jayalalithaa that the income tax department did not view receipt of gifts as crime if one disclosed them and paid tax. The counsel had requested the court to take a similar view.

Rejecting the contention, the SC said: “To reiterate, disclosure of such gifts in the I-T returns of Jayalalithaa and orders of the I-T authorities on the basis thereof do not validate the said receipts to elevate the same to lawful income to repel the charge under Section 13(1)(e) of the PC Act.“ RELATED REPORTS: P 18 While dealing with the nexus between Jayalalithaa as the kingpin and associates Sasikala, V N Sudhakaran and J Elavarasi, the SC said: “The unimpeded, frequent and spontaneous inflow of funds from the accounts of Jayalalithaa to those of the other co-accused and the firms companies involved overwhelmingly demonstrate the collective culpable involvement of the respondents in the transactions in the face of their overall orientation so as to render the same to be masked banking exchanges though involving several accounts but mostly of the same bank. No other view is possible.“

The SC accepted the trial court finding that although Sasikala, Sudhakaran and Elavarasi claimed to have independent sources of income, “but the fact of constitution of firms and acquisition of large tracts of land out of the funds provided by Jayalalithaa indicate that all the accused congregated in the house of Jayalalithaa neither for social living nor Jayalalithaa allowed them free accommodation out of humanitarian concern“.

“The facts and circumstances proved in evidence undoubtedly point out that Sasikala, Sudhakaran and Elavarasi were accommodated in Jayalalithaa's house pursuant to the criminal conspiracy hatched by them to hold Jayalalithaa's assets,“ the SC said.

Maternity leave

For having children via a surrogate

Now, maternity leave for having kids via surrogate, February 8, 2018: The Times of India


Implement Delhi HC’s ’15 Order: DoPT To Govt Depts

The department of personnel and training (DoPT) has instructed all central ministries and departments to implement a 2015 order of the Delhi high court for granting maternity leave to women employees who choose to have a child by commissioning a surrogacy. Such leave would include both the pre-natal and postnatal period.

The Delhi HC had in July 2015 pronounced a judgement on plea by a Kendriya Vidyalaya teacher who had a pair of twins through a surrogate mother but was denied the 180-day maternity leave on the ground that she was not the biological mother.

Reasoning that the commissioning mother is legal mother of the child, HC laid down guidelines and filled a vacuum in law since the Centre or state governments have no maternity benefit policy for women employees who opt to have children through a surrogate pregnancy.

As instructed by the court, the commissioning mother would be entitled to apply for maternity leave under sub rule (1) of Rule 43 of CCS (Leave) Rules. The competent authority would decide the timing and period for which the maternity leave is to be granted to the commissioning mother, based on material placed before it.

Under Rule 43(1), female government employees are entitled to maternity leave up to 180 days. While the scrutiny would be keener and detailed when leave is sought by the commissioning mother in the pre-natal stage and a reasoned order would be passed were the leave to be declined, the competent authority would ordinarily grant leave sought at the post-natal stage, except where there are substantial reasons for declining the request.

A DoPT officer told TOI that until the CCS(Leave) Rules are amended to lay down a clear and uniform policy based on the Delhi HC order, the central ministries and departments would have to implement the order in letter and spirit while processing applications for maternity leave from commissioning mothers opting for the surrogacy route. “All ministries/departments are advised to give wide publicity of its (Delhi HC order’s) contents to the concerned officers,” the DoPT said in an office memorandum dated January 29, 2018.

Militants, former

Can't get govt jobs back on surrender

The Times of IndiaDec 23 2015

TIMES NEWS NETWORK

The Jammu & Kashmir HC has dismissed a plea seeking reemployment of former government employees who turned to militancy but subsequently surrendered under the state's 2004 rehabilitation policy .

Chief justice N Paul Vasanthakumar on Monday said the employees can't get their jobs back under the policy . Petitioner Irshad Ahmad Bhat had left his job as a junior government engineer to join militants in 1999. He surrendered in 2004, and was allowed by the executive engineer to join the service again despite his over 5-year absence, considered “abandoning of service“ in J&K. He was eventually dismissed.

Overtime allowance

2018: only operational employees entitled

June 27, 2018: The Times of India


HIGHLIGHTS

The government has decided to discontinue overtime allowance (OTA) except in the case of ‘operational staff ’

DoPT has asked all ministries and departments to prepare a list of such ‘operational staff ’ with full justification based on the above parameters

The plan is to link OTA to biometric attendance


Govt limits overtime pay to ‘operational employees’ NEW DELHI: The Modi government decided to discontinue overtime allowance (OTA) except in the case of ‘operational staff ’ involved in smooth functioning of an office or maintenance jobs, besides freezing the rates of overtime allowance at the levels in force since March 1991.

“It has been clarified by the department of expenditure that the government has decided that given the rise in pay over the years, the recommendations of the 7th Central Pay Commission to discontinue OTA for categories other than operational staff and industrial employees who are governed by statutory provisions may be accepted. Accordingly, it has been decided to implement the aforesaid decision... across all ministries/departments and attached and subordinate office of the government of India,” the department of personnel and training said in an office memorandum issued on June 19.

DoPT officials said all non-ministerial, non-gazetted central government employees directly involved in smooth operation of the office, including those tasked with operation of some electrical and mechanical equipment, may be deemed ‘operational staff ’ eligible for overtime allowance.

DoPT has asked all ministries and departments to prepare a list of such ‘operational staff ’ with full justification based on the above parameters. The list must be approved by the joint secretary (administration) and the financial adviser of the ministry/department concerned.

The plan is to link OTA to biometric attendance. Also, OTA should be paid only when the senior officer directs the employee concerned in writing to stay back in office for urgent work. OTA for drivers may be calculated either based on biometric attendance or from log books.

Field officers’ OTA must be calculated based on biometric attendance with the eligible staff required to report to office before going to the field. If they must go directly to the field, OTA may be given based on log book of the official transport availed by the employee.

Pension

Right to pension can't be taken away pending proceedings: SC

PTI | Aug 20, 2013

NEW DELHI: Observing that gratuity and pension are hard earned benefits of an employee and right to receive pension is in the nature of "property", the Supreme Court has held that this right cannot be taken away from a government employee pending departmental or criminal proceedings.

"It is an accepted position that gratuity and pension are not the bounties. An employee earns these benefits by dint of his long, continuous, faithful and un-blemished service. It is thus hard earned benefit which accrues to an employee and is in the nature of "property".

"This right to property cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India," a bench of justices K S Radhakrishnan and A K Sikri said.

The court passed the judgement while dismissing the appeal of Jharkhand government against the state's high court order directing it to release the withheld dues of its retired employee Jitendra Kumar Srivastava, who had criminal cases pending against him.

"We are of the opinion that the right of the petitioner (Srivastava) to receive pension is property under Article 31(1) (of the Constitution) and by a mere executive order the State had no power to withhold the same."

"...the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1)of Constitution, and as such the writ petition under Article 32 is maintainable," the bench said.

It also said "a person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced."

Pensions for children of divorced/ illegally wedded wives

Children of divorced, illegally wedded wives of deceased officers entitled to pension

PTI | Aug 29, 2013

The Times of India

Children of divorced, illegally wedded wives of deceased officers entitled to pension Earlier, children born outside wedlock had no claim on family pension and the legally wedded wife was the sole recipient of the post-retirement benefit.

NEW DELHI: Children of divorced or those born to illegally wedded wife of a deceased all India services officer are entitled to get family pensions, according to new rules notified by the central government.

"Where the deceased member of service or pensioner is survived by a widow but has left behind eligible child or children from a divorced or an illegally wedded wife or wives, the eligible child or children shall be entitled to the share of family pension which the mother would have received at the time of the death of the member of service or pensioner had she not been so divorced or had she been legally wedded," they say.

All India services comprise IAS, IPS and Indian Forest Service.

Earlier, children born outside wedlock of a government servant had no claim on family pension and the legally wedded wife was the sole recipient of the post-retirement benefit.

Pensions for additional wives

The amended All India Services (Death-cum-Retirement Benefits) Rules, 1958, also have provisions to provide equal share of pension to more than one widow of a deceased officer.

The rules have a provision to recognise marriage and family of a member of the services after his or her retirement and have made such family member eligible to receive pension after the death of an officer.

They also provide for monetary support to mentally retarded children of an officer of Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFoS).

"If the son or daughter of a member of service is suffering from any disorder or disability of mind including the mentally retarded or is physically crippled or disabled so as to render him or her unable to earn a living even after attaining the age of twenty-five years, the family pension shall be payable to such son or daughter for life," the rules said.

If there are more than one such son or daughter suffering from disorder or disability of mind or who are physically crippled or disabled, the family pension shall be paid in the order of their birth and the younger of them will get the family pension only after the elder next above him or her ceases to be eligible, the rules clarified.

In case both wife and husband are members of service and are governed by the provisions of the rules and one of them dies while in service or after retirement, the family pension in respect of the deceased shall become payable to the surviving husband or wife and in the event of the death of the husband or wife, the surviving child or children shall be granted the two family pensions in respect of the deceased parents, they said.

Pension after age 80/ 95/ 100

Retired all India service officials will also get additional pensions after completing 80 years of age, according to them.

Such retired government officials will get 20 per cent of additional pension after they complete 80 years of age, 30 per cent of after completing 85 years, 40 per cent after crossing 90 years of age, 50 per cent after reaching 95 years and 100 per cent of additional pension after completing 100 years of age, the rules said.

If there are more than one such son or daughter suffering from disorder or disability of mind or who are physically crippled or disabled, the family pension shall be paid in the order of their birth and the younger of them will get the family pension only after the elder next above him or her ceases to be eligible, the rules clarified.

In case both wife and husband are members of service and are governed by the provisions of the rules and one of them dies while in service or after retirement, the family pension in respect of the deceased shall become payable to the surviving husband or wife and in the event of the death of the husband or wife, the surviving child or children shall be granted the two family pensions in respect of the deceased parents, they said.

Retired all India service officials will also get additional pensions after completing 80 years of age, according to them.

Such retired government officials will get 20 per cent of additional pension after they complete 80 years of age, 30 per cent of after completing 85 years, 40 per cent after crossing 90 years of age, 50 per cent after reaching 95 years and 100 per cent of additional pension after completing 100 years of age, the rules said.

Widow, not dead man's mother, to get pension

Dhananjay Mahapatra, Widow, not dead man's mom, will get pension: SC The Times of India Sep 30 2016

Deciding a long and bitter `saas-bahu' fight over a dead man's pension, the Supreme Court stood behind the daughter-in-law and ruled that a widow alone was entitled to pension after death of an employee and not his mother.

A bench of Justices A R Dave and L Nageshwar Rao faced a tricky question while deciding this dispute between the mother and wife of deceased Haryana government employee Yash Pal.While the widow laid claim to her late husband's pension, the mother cited the Hindu Succession Act to stake her claim.

Writing the judgment for the bench, Justice Dave said so far as provisions of Hindu Succession Act, 1956 were concerned, the properties of a Hindu who dies intestate (without writing a will) would first of all go to persons categorised as class-I heirs.

“Therefore, so far as the properties of late Yash Pal are concerned, they would be divided among the mother and widow, provided no other family member of Yash Pal is alive who would fall within class-I heirs,“ Justice Dave said.

But the position on pension was different, the SC said. Citing an earlier judgment, the court said family pension did not form part of the deceased employee's property to be divided among his family members categorised as class-I heirs.

“Even the employee has no right to dispose of family pension in his will by giving direction that someone other than the one entitled to it should be given the same,“ the bench said and set aside Punjab and Haryana High Court's order entitling the mother to 50% of family pension.

On the fight between the daughter-in-law and the mother-in-law over Yash Pal's pension, the bench said, “Under the family pension scheme, widow is the only family member entitled to the pension and, therefore, the mother of the deceased would not get any right in the pension. Of course, it cannot be disputed that if there are other assets left by late Yash Pal, his mother would get 50% share if he had not prepared any will and it appears that late Yash Pal had died intestate and no will had been executed by him.“

Pensioner need not visit bank to activate pension

No need for govt employees to visit bank to start pension: Government, Aug 6, 2017: The Times of India


HIGHLIGHTS

No need for central govt employees to visit banks to start pension.

The copy of the pension payment order will be handed over to them at the time of retirement.

There are about 48 lakh central government employees and about 53 lakh pensioners.


There is no need for central government employees to visit banks to start pension as their copy of the Pension Payment Order (PPO) will be handed over to them at the time of retirement, the Personnel Ministry has said.

Citing existing rules in this regard, the ministry, in a recent order issued to all central government departments, has said, "The pensioner is no longer required to visit the bank to activate the first payment of pension."

The rules also provide for an undertaking to be submitted by the retiring government servants or pensioners to the disbursing banks before the commencement of their pensions. After ascertaining that the bank's copy (of PPO) has been dispatched by the Central Pension Accounting Office, the pensioner's copy is to be handed over to him at the time of retirement along with other retirement dues, the order said.

An employee posted at a location away from the head of office, or who for any other reasons feels that it would be more convenient to him to obtain his copy of the PPO from the bank, may inform the head of office of his option in writing while submitting his pension papers, it said.

In the recent past, many instances have come to the notice wherein the pensioner's copy of the PPO had not been handed over to him/her and instead had been sent to the bank and was lost in transit sometimes, thereby causing hardship to the pensioner, the order issued on August 1, said.

In view of these, all ministries/departments are once again requested to strictly follow the procedure henceforth and hand over the copy of the PPO to the pensioner at the time of retirement along with other retirement dues, except if the pensioner specifically requests for delivering his/her copy of the PPO through the bank, it said.

There are about 48 lakh central government employees and about 53 lakh pensioners.

The pension gets delayed either due to the delay in receipt of intimation by the pensioner that relevant papers have reached the bank or because of delay on the part of the pensioner in approaching the bank for submission of undertaking, the personnel ministry had said in one of its earlier orders.

Personal misconduct, grave

IPS officer dismissed for affair without divorcing wife/ 2019

March 7, 2019: The Times of India


Controversial IPS officer Pankaj Kumar Choudhary has been dismissed from service due to “grave personnel misconduct” on grounds that he had got into a relationship with another woman without legally separating from his wife.

The order of Union ministry of home affairs dated February 19 was put up outside Pankaj Kumar Choudhary’s official residence in Gandhi Nagar on Wednesday as he is currently on leave due to medical reasons.

The MHA order states that the 2009-batch officer married Sudha Gupta on December 4, 2005, and legally separated from her on May 5, 2018. According to the order, during the intervening period while Choudhary was not legally separated from his wife, he entered into a physical relation with another woman and fathered a child from her.

Polygamy

From the archives of The Times of India 2007, 2009 2010

OK to sack Muslim cop for having 2 wives: SC

TIMES NEWS NETWORK

New Delhi: After 23 years in court, a Muslim constable’s plea that he did not fall afoul of a bigamy charge as this was permissible in his religion, has been decisively quashed by Supreme Court which dismissed his special leave petition against a high court ruling.

The SC decision not to entertain the petition clearly establishes that those in government jobs cannot get around service rules that stipulate dismissal from service for bigamous employees. The SC said that religion-based personal laws cannot be invoked to prevent government rules from being enforced.

Former Rajasthan police constable, Liyakat Ali challenged the termination of his services under the Rajasthan Civil Services (Conduct) Rules, 1971, banning second marriage without divorcing the first wife.

The Supreme Court upheld the HC ruling against Ali on the ground that he had contracted a second marriage without divorcing his first wife. Ali contended that Muslim personal law did not prohibit a second marriage even as the relation with the first wife remained legally binding.

Constable’s first marriage not annulled

New Delhi: The former Rajasthan constable, who was dismissed from service on a bigamy charge had taken a plea that he had divorced his first wife before contracting the marriage with Maksuda. However, the inquiry reportedly revealed that the first marriage had not been annulled when he married for the second time.

The law did not mandate taking permission of the government and Liyakat Ali married Maksuda Khatun without divorcing his first wife Farida Khatun.

On January 25, an apex court bench comprising Justices V S Sirpurkar and Aftab Alam dismissed Ali’s appeal against the HC judgment prima facie accepting the stand of the Rajasthan government that the 1971 rules were applicable to all government servants, irrespective of the religion, to enforce strict discipline.

Promotions

HC: Merit has edge over seniority

Ajay Sura, August 31, 2019: The Times of India


The Punjab and Haryana HC has ruled that suitability of an employee for promotion has to be determined on the basis of merit-cum-seniority and not seniority-cum-merit. Explaining that merit was predominant and seniority was subordinate, Justice Rajiv Narain Raina while dismissing petitions filed by senior-scale stenographers of the high court against a committee decision to hold a test for their promotion to the next level, said “merit-cum-seniority” put greater emphasis on merit and ability, and seniority played a less significant role.

Prosecution

Sanction (prior) for probe into corruption allegations

The Times of India, Jul 03 2016

A Subramani  HC: No need for govt nod to probe babus

In a landmark ruling, Madras high court has quashed a Tamil Nadu government order making prior permission or `remarks' from the government mandatory for probing corruption allegations against all `public servants' irrespective of category and rank. “The powers of a police officer are sought to be restricted by superimposing a requirement of a mandatory prior remarks `before ordering an appropriate inquiry by the directorate of vigilance and anticorruption (DVAC),“ said the first bench comprising justice Sanjay Kishan Kaul and justice R Mahadevan on Friday .The term `government servants' was also replaced with a new term `public servants' thereby bringing even elected representatives under the protective umbrella of prior nod.

No sanction required for officials transferred out of a post

The Times of India, Sep 08 2016

Dhananjay Mahapatra

`Tainted' officials lose anti-prosecution shield when transferred: SC  Providing investigating agencies a significant handle to go after officials accused of corruption, the Supreme Court has ruled that no sanction will be required to prosecute government servants who have been transferred out of a post where they allegedly indulged in such activities. A bench of Justices A K Sikri and N V Ramana gave the ruling while answering the question -“whether a public servant who is not in the same post and is transferred loses the protection under Section 19 (1) of the Prevention of Corruption Act, though he continues to be a public servant, albeit on a different post?“ Section 19(1) prohibits courts from taking cognisance of an offence under various provisions of the PC Act without sanction from the government concerned. This means a designated court cannot take cognisance of a chargesheet filed under the Act against a government servant unless the investigating agency has obtained sanction for prosecution before filing of the charge-sheet.

The shield to protect the bureaucracy from malicious prosecution and help them take bold decisions will no longer be available to officers if they get transferred from the station where they they committed the alleged corrupt act. Civil servants are already restive over the prosecution proceedings against some of their colleagues.

Expanding apex court's ruling in Parkash Singh Badal case, the bench said: “If the public servant had abused entirely different office or offices than the one which he was holding on the date when cognisance was taken (by the designated court), there was no necessity of sanction under Section 19 of the PC Act.“

“Where the public servant had abused the office which he held in the check period, but had ceased to hold `that office' or was holding a different office, then sanction would not be necessary . Likewise, where the alleged misconduct is in some different capacity than the one which is held at the time of taking cognisance, there will be no necessity to take sanction,“ Justice Sikri, who wrote the judgement for the bench, said.

Upholding a Karnataka high court order allowing prosecution of one L Narayana Swamy , the SC said since the appellant had allegedly abused entirely different office than the one which he was holding on the date on which cognisance was taken, there was no necessity to take sanction under Section 19 of the PC Act.

DoPT’s say to be final

Will a babu be probed? DoPT’s say to be final, May 17, 2019: The Times of India


The department of personnel and training (DoPT) led by the PM will have a final say on granting sanction to prosecute grafttainted central government employees where his/her respective department and central vigilance commission hold a different opinion.

In an order issued after amendment to the Prevention of Corruption Act, 1988, last year, DoPT laid down guidelines to deal with disagreement between disciplinary authority (any central government department) and the CVC in cases of granting the prosecution sanction.

CBI recommends sanction of prosecution of persons only in cases where probe conducted by it finds sufficient justification for the same.

As per the guidelines, in cases where the CVC advises grant of sanction for prosecution but the ministry/department concerned proposes not to accept such advice, the case should be referred to the DoPT, which is headed by PM, for final advice.

The cases, where the CVC declines sanction for prosecution but the ministry/department concerned proposes not to accept such advice, should also be referred to the DoPT.

In cases where the CBI has sought sanction for prosecution and the CVC has recommended grant of sanction and yet the authority proposes not to, the decision of DoPT would be final, the guidelines said.

Recruitment

Age limit

UP abolishes it for widows, divorced women

Subhash Mishra, No age bar for widows, divorced women applying for UP govt jobs, Oct 29 2016 : The Times of India


In a major policy decision, UP government has done away with the upper age limit for widows and divorced women applying for government jobs.

Verification of character, antecedents

Prior police verification replaced by self-declaration

The Times of India, Jul 02 2016

Verification by cops dropped for govt jobs  After promoting self-attestation in government documentation, the Narendra Modi government has now done away with mandatory completion of police verification prior to the issuance of appointment letters for government jobs. Instead, a self-declaration by the candidate selected for recruitment stating that he she has no criminal case pending against himher, or, if any , with details of the case(s), will suffice for the issuance of a provisional appointment letter. Though police verification will still be carried out, the issuance of the provisional letter need not be withheld pending the procedure.

Once the verification report is received, the provisional appointment letter will be confirmed. Of course, the candidate must give a commitment in the self-declaration that in case any false information is given, heshe will be rendered unfit for employment. The candidate will also be liable for criminal action.]

Retirement

Premature

Forced early retirement: Bad reputation sufficient grounds

Bad reputation can justify forced early retirement: HC

Ajay Sura TNN

Chandigarh: An employee may be forced to retire in public interest if his/her “general reputation” is not good even without tangible material to substantiate it, the Punjab and Haryana HC has said.

A division bench passed the order on Friday while upholding the HC decision on premature retirement of Haryana Superior Judicial Services judicial officer Chaman Lal Mohal.

Mohal was entitled to work till the age of 60, but was forced to prematurely retire on January 29 after the court’s administrative judge declared his integrity as “doubtful”.

Post-retirement

Cooling-off period for post-retirement employment

The Times of India Dec 22 2015

The cooling-off period for bureaucrats seeking commercial employment post-retirement has been cut, by half, to one year.

New rules formulated recently by the personnel ministry say that to take up jobs at private firms, officers of the Indian Administrative Service (IAS) and the Indian Police Service (IPS), among others, will only have to seek prior permission from the Centre if it's within a year from the date ofretirement.

However, they need to declare clear service records, particularly with respect to integrity and dealings with non-government organisations (NGOs), and also mention that the proposed emoluments and pecuniary benefits offered to them conform to industry standards.

The reduction follows a demand by officers that the cooling-off period be brought down from two years.

The officials need to make the following declaration in a revised application form: “The organisation in which I am seeking employment is not involved in activities which are in conflict with or prejudicial to India's foreign relations, national security and domestic harmony . The organisation is not undertaking any activity for intelligence gathering.“

Pensioners need to affirm that in the last three years of service, they were not privy to sensitive or strategic information directly related to the areas of interest or work of the organisation that they propose to join or to the areas in which they propose to practise or consult.

Seniority: not a fundamental right: CAT

From the archives of The Times of India 2010

New Delhi: Central Administrative Tribunal has refused to set aside an order by the MCD revising the seniority list of its junior stenographers saying that it cannot be claimed as a “fundamental right”. “As per the law, seniority is not a fundamental right of a public employee. It is only a civil right. There cannot be any change in this contrary to the principles of natural justice,” the Tribunal bench, said. PTI

Sexual harassment

Shift staff for probe

The Times of India, September 13, 2016

Vacancies as % of sanctioned strength in high courts and districts and subordinate courts; Graphic courtesy: The Times of India, September 13, 2016

The country needed more judges to counter the increase in per capita litigation, which he said was bound to rise further with improved literacy rates and incomes. The shortage of judges in our courts is laid bare by the fact that there are glaring vacancies even in the sanctioned posts

Sexual harassment victims allowed three months paid leave : Govt

Daily Excelsior , Sexual harassment victims allowed three months paid leave : Govt "Daily Excelsior" 18/7/2015

A complainant in sexual harassment case will be allowed three months paid leave and she or the charged Government employee can be transferred to other department during the inquiry, according to a fresh set of strict instructions by the Centre in such cases.

The disciplinary authority has been directed not to dispense with the inquiry in complaints of sexual harassment lightly, arbitrarily or with ulterior motive or merely because the case against the Government servant is weak.

The committees for checking sexual harassment at work place will have the powers to recommend transfer of the aggrieved woman or the charged officer to any other workplace, and to grant leave to the aggrieved woman up to a period of three months. “The leave will not be deducted from her leave account,” it said.

Complaints committees have been set up in all ministries and organisations under them in pursuance to the judgement of the Supreme Court in the Vishakha case. These committees are to be headed by a woman and at least half of its members should be women.

“In case a woman officer of sufficiently senior level is not available in a particular office, an officer from another office may be so appointed. To prevent the possibility of any undue pressure or influence from senior levels, such complaints committees should involve a third party, either an NGO or some other body which is familiar with the issue of sexual harassment,” the Department of Personnel and Training (DoPT) said in its instructions.

The aggrieved woman or complainant is required to make a complaint within three months of the incident and in case there has been a series of incidents, three months of the last incident, it said.

The complaints committee may, however, extend the time limit for reasons to be recorded in writing, if it is satisfied that the circumstances were such which prevented the complainant from filing a complaint within the stipulated period, the DoPT guidelines said.

Sexual harassment includes physical contact and advances, demand or request for sexual favours, sexually coloured remarks, showing any pornography and any other unwelcome physical, verbal, non-verbal conduct of a sexual nature.

Besides, implied or explicit promise of preferential or detrimental treatment in employment; implied or explicit threat about her present or future employment status; interference with her work, creating an intimidating, offensive or hostile work environment for her; and humiliating treatment likely to affect her health or safety may also amount to sexual harassment, it said. The committee may make recommendations including deduction from the salary or wages of the charged officer such sum as it may consider appropriate to be paid to the aggrieved woman or to her legal heirs.

“Committee may recommend action to be taken against complainant, if the allegation is malicious, or the complainant knows it to be false, or has produced any forged or misleading document. The Committee may also recommend action against any witness if such witness has given false evidence or produced any forged or misleading document,” the DoPT instructions read. (PTI)

Suspension

Limited to 90 days

The Times of India Feb 17 2015

SC fixes 90-day limit for suspension of govt employees

Amit Choudhary

Protracted period of suspension of delinquent government employee has become a norm and such practice must be curbed, the Supreme Court on Monday said while fixing a period of ninety 90 days for authorities to complete proceedings against such an employee. The court said that an employee suffered ignominy and scorn of society due to prolonged period of suspension. “We, therefore, direct that the currency of a suspension order should not extend beyond three months... if within this period the Memorandum of ChargesChargesheet is not served on the delinquent officeremployee,“ a bench headed by Justice Vikaramajit Sen said. It said suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must be of short duration.

“If it is for an indeterminate period or if its renewal is not based on sound reasoning contemporaneously available on the record, this would render it punitive in nature,“ the bench said.

“Protracted periods of suspension, repeated renewal thereof, have regrettably become the norm and not the exception that they ought to be. The suspended person suffering the ignominy of insinuations, the scorn of society and the derision of his department, has to endure this excruciation even before he is formally charged with some misdemeanour or offence,“ the bench said The court passed the order on a petition filed by defence estate officer Ajay Kumar Choudhary who was kept suspended for a long time.

Temporary staff

Should be paid on a par with regular staff

AmitAnand Choudhary, SC: Temporary staff should be paid on par with regular ones, Oct 27 2016 : The Times of India


`Follow Equal Pay For Equal Work Principle'

In what comes as a relief for lakhs of temporary employees who have been hired by government departments and agencies across the country on contractual basis, the Supreme Court held on Wednesday that they are entitled to wages on par with permanent staff under the `equal pay for equal work' principle.

A bench of Justices JS Khehar and SA Bobde said the principle of `equal pay for equal work' constitutes a clear and unambiguous right vested in every employee, whether engaged on regular or temporary basis.

“In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another ... Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity ,“ the bench said.

The bench said the principle had been expounded through a large number of judge ments rendered by the apex court and constitutes law declared by the Supreme Court.

“Any act of paying less wages as compared to others similarly situated, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive as it compels involuntary subjugation,“ Justice Khehar said.

The court passed the verdict on petitions filed by temporary employees working for Punjab seeking wage parity with regular employees. They approached the SC after the Punjab and Haryana HC held that temporary employees were not entitled to the minimum of the regular pay-scale.

Setting aside the HC order, the SC held that the principle of `equal pay for equal work' must be followed as India is a signatory to the International Covenant on Economic, Social and Cultural Rights. “ There is no escape from the above obligation, in view of different provisions of the Constitution and in view of the law declared by this court under Article 141 of the Constitution. The principle of `equal pay for equal work' constitutes a clear and unambiguous right and is vested in every employee -whether engaged on regular or temporary basis,“ it said.

Transfers

From the archives of The Times of India 2010

Courts shouldn’t meddle in routine transfers: HC

A Subramani | TNN

Chennai: A government servant holding a transferable post has no vested right to remain posted at one place and courts should not interfere with a transfer order made for administrative reasons, Madras High Court has ruled.

A bench of chief justice H L Gokhale and Justice V Dhanapalan, concurring with the submissions of senior counsel A L Somayaji, said, ‘‘It is the cardinal principle that a transfer is ordinarily an incident of service. The court should not interfere with a transfer order, which is made for administrative reasons, unless the orders are made in violation of any mandatory or statutory rule or on the ground of malafide.’’

The matter relates to a writ appeal filed by National Insurance Company Limited, which challenged a single judge order quashing the transfer of S Ashok Kumar, who was transferred to Tuticorin as divisional manager. Ashok Kumar challenged the transfer, stating that his father had been diagnosed with malignant rectal cancer and that he required constant medication and monitoring, including chemotherapy and radiation.

In 2008, Ashok Kumar had been transferred to Hyderabad, which was later put on hold in view of his father’s health condition.

Senior counsel Somayaji, however, pointed out that Ashok Kumar was in Chennai for 17 years without a transfer, and that the earlier transfer too had been cancelled on humanitarian grounds.

'Sack workers who do not deliver'

Sack sweepers if they can't deliver: HC The Times of India Nov 27 2014

If 60,000 conservancy workers can't keep the city clean they must be removed, the Delhi high court said on Wednesday , taking to task municipal corporations for wasting public money, reports Abhinav Garg. If things remained as such, the “Swachh Bharat Abhiyan is not going to kick off...“ the judges observed.

“If they aren't working why waste public money on them.Just leave them,“ the bench of Justices B D Ahmed and Siddharth Mridul said. Their reference was to the city's invisible army of safai karmacharis. The bench was hearing a petition filed by an NGO seeking details of daily conservancy work.

Voluntary retirement 

Not a right: SC/ 2018

VRS is not a right, rules SC, August 24, 2018: The Times of India


‘UP Right In Rejecting Plea Of Doctors’

The Supreme Court has said a government employee cannot seek voluntary retirement as a matter of right and the government can frame rules to deny pleas for quitting prematurely in larger public interest.

A bench of Justices Arun Mishra and S Abdul Nazeer upheld Uttar Pradesh government’s decision to reject the request for voluntary retirement of four senior doctors of the rank of joint directors and senior consultants and said the decision was justified due to severe shortage of doctors in the state. It said the concept of public interest could be invoked by the government when voluntary retirement was sought by an employee.

“The government’s decision caters to the needs of human life and carries the objective of public interest. The doctors are claiming the right to retire under Part III of the Constitution, such right cannot be supreme than right to life. It has to be interpreted along with the rights of the state government in Part IV of the Constitution as it is obligatory upon it to make an endeavour to look after the provisions for health and nutrition. In case all the doctors are permitted to retire, in that situation, there would be chaos and no doctor would be left in government hospitals, which would be against the concept of the welfare state and injurious to public interest,” the bench said.

The court set aside the Allahabad High Court verdict directing the state to grant voluntary retirement to the doctors. The prayer for voluntary retirement was rejected by the state on the ground of lack of specialised doctors in government hospitals.

“The concept of public interest can also be invoked by the government when voluntary retirement sought by an employee would be against public interest. The provisions cannot be said to be violative of any of the rights. There is already paucity of doctors as observed by the HC, the system cannot be left without competent senior persons and particularly, the HC has itself observed that doctors are not attracted to join service and there is an existing scarcity of doctors. Poorest of the poor obtain treatment at government hospitals. They cannot be put at peril,” the bench said.

See also

Corruption: India

Family planning: India

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