‘Advocate needs to be in continuous practice for 7 years on date of application to seek appointment as District Judge’ - Business Guardian
Connect with us

Legally Speaking

‘Advocate needs to be in continuous practice for 7 years on date of application to seek appointment as District Judge’

Published

on

While reiterating what is manifestly laid down in our law and as also specifically enjoined in Article 233 of our Constitution, the Allahabad High Court in a learned, laudable, landmark and latest judgment titled Bindu v. High Court Of Judicature At Allahabad Through Its RG And Another in Writ – A No. – 17936 of 2021 and cited in 2022 LiveLaw (AB) 137 that was pronounced finally on March 22, 2022 has made it crystal clear that for seeking appointment as Judicial Officer/District Judge as per Article 233 (2) of the Constitution of India, an Advocate has to be in continuous practice for not less than 7 years [with no break in between] as on the cut-off date and at the time of appointment as District Judge. It must be mentioned here that the Bench of Delhi High Court comprising of Justice Dr Kaushal Jayendra Thaker and Justice Ajai Tyagi preferred to rely upon the Supreme Court’s judgment in the leading case of Deepak Aggrawal v. Keshav Kaushik and others, (2013) 5 SCC 277, wherein it had been held that as per Article 233(2), a person seeking appointment as a District Judge must be practicing as an advocate for continuous 7 years (without any break) on the date of application. Of course, it merits no reiteration that all the aspirants for the post of District Judge must ensure that they comply firmly, fully and finally with what has been laid down so clearly, cogently and convincingly in this leading case.
To start with, this extremely commendable, cogent and convincing judgment authored by a Bench of Allahabad High Court comprising of Justice Hon’ble Dr Kaushal Jayendra Thaker and Justice Hon’ble Ajai Tyagi sets the ball rolling by first and foremost putting forth in para 1 that, “Heard Sri Vijay Tripathi, learned counsel for the petitioner and Sri Rahul Agarwal, learned counsel for the High Court-respondents.”
Needless to say, the Bench then specifies in para 2 that, “The petitioner has prayed for the following reliefs:
“I. issue a writ, order or direction in the nature of certiorari quashing the impugned rejection order dated 22/10/2021 (Annexure No.1 to this writ petition).
II. issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to allow the petitioner to participate in selection process of U.P. Higher Judiciary Services, 2020.
III. to issue any other writ, order or direction which this Hon’ble court may deem fit and proper in the facts and circumstances of the case.””
While briefly elaborating on the facts of the case, the Bench then stipulates in para 3 that, “The facts in nutshell for our purpose are that the petitioner applied for being appointed as a Judicial Officer in the U.P. State Higher Judicial Services, the clinching aspect which is under challenge is that the High Court after the petitioner had cleared the preliminary exam, she was not permitted to appear for final exams, on the ground that on interpretation of the rules and placing reliance on the judgment of the Apex Court in Deepak Aggrawal v. Keshav Kaushik and others, (2013) 5 SCC 277 the committee found that the petitioner does not have continuous practice for seven years on date of exam/filling form. The High Court on its administrative side conveyed to the petitioner that she was not qualified as per rules.”
As we see, the Bench then discloses in para 3 that, “Shri Jitendra Kumar holding brief of the counsel appearing on behalf of petitioner has contended that the petitioner has passed preliminary exams and is practicing as a public prosecutor since 2019. Learned counsel for petitioner also places reliance on the judgment of the Apex Court in Deepak Aggrawal (supra).”
To put things in perspective, the Bench then deems it fit to put forth in para 4 that, “At this juncture, it would be relevant for us to verbatim refer to paragraphs no.101 and 102, of decision titled Deepak Aggawal (Supra) which we verbatim reproduce as under:
“101. The Division Bench has in respect of all the five private appellants – Assistant District Attorney, Public Prosecutor and Deputy Advocate General – recorded undisputed factual position that they were appearing on behalf of their respective States primarily in criminal/civil cases and their appointments were basically under the C.P.C. or Cr.P.C. That means their job has been to conduct cases on behalf of the State Government/C.B.I. in courts. Each one of them continued to be enrolled with the respective State Bar Council. In view of this factual position and the legal position that we have discussed above, can it be said that these appellants were ineligible for appointment to the office of Additional District and Sessions Judge? Our answer is in the negative. The Division Bench committed two fundamental errors, first, the Division Bench erred in holding that since these appellants were in full-time employment of the State Government/Central Government, they ceased to be ‘advocate’ under the 1961 Act and the BCI Rules, and second, that being a member of service, the first essential requirement under Article 233(2) of the Constitution that such person should not be in any service under the Union or the State was attracted. In our view, none of the five private appellants, on their appointment as Assistant District Attorney/Public Prosecutor/Deputy Advocate General, ceased to be ‘advocate’ and since each one of them continued to be ‘advocate’, they cannot be considered to be in the service of the Union or the State within the meaning of Article 233(2). The view of the Division Bench is clearly erroneous and cannot be sustained. 102. As regards construction of the expression, “if he has been for not less than seven years an advocate” in Article 233(2) of the Constitution, we think Mr. Prashant Bhushan was right in his submission that this expression means seven years as an advocate immediately preceding the application and not seven years any time in the past. This is clear by use of ‘has been’. The present perfect continuous tense is used for a position which began at some time in the past and is still continuing. Therefore, one of the essential requirements articulated by the above expression in Article 233(2) is that such person must with requisite period be continuing as an advocate on the date of application”.”
Notably, the Bench then underscores in para 5 that, “While perusing the grounds of challenge, it is clear from the factual data that petitioner cannot seek appointment as Judicial Officer/District Judge in this calendar year as the petitioner does not fulfill the criteria fixed as per provisions of Articles 233, 234 and 236 of the Constitution of India and the rules for. The question is whether the break in practice of the petitioner can be condoned? The decision in Deepak Aggarwal (supra) will not help the petitioner as in our case the Rules categorically mention and has been interpreted to mean seven years in Satish Kumar Sharma v. Bar Counsel of HP, (2001) 2 SCC 365 will have to be looked into. In our case, the petitioner herein from a period of 2017 to 2019 was employed and so there is brake in a legal practice. The Rules framed have to be construed so as to see that the purpose of the legislation is not withered down.”
For sake of clarity, the Bench then specifies in para 6 that, “The term used “has been” is interpreted to mean seven years and has to be in present perfect continuous tense and not has been seven years during any period. This interpretation will not permit us to entertain this petition and grant the mandamus to permit the petitioner to appear in the exam.”
Most significantly, what forms the cornerstone of this notable judgment is then laid bare in para 7 wherein it is enunciated that, “The recent decision of the Division Bench of this Court titled Shashank Singh and others v. Hon’ble High Court of Judicature at Allahabad and another, Writ-A No.27120 of 2018 decided on 3.12.2021 is also pressed in service by Shri Rahul Agarwal, learned counsel for the High Court-namely respondents where in it is held:
“The subject matter of the writ petition relates to the process of Direct Recruitment to the U.P. Higher Judicial Services-2018 (Part II). The Allahabad High Court issued a Notification dated 12.11.2018 inviting applications for direct recruitment to the Uttar Pradesh High Judicial Service-2018 (Part-II);
For appreciating the arguments raised on behalf of the writ petitioners, it would be appropriate to refer to Rule 5 of the U.P. Higher Judicial Service Rules 1975, which is reproduced as under:-
“5. Sources of recruitment.- The recruitment to the Service shall be made
a) by promotion from amongst the Civil Judges (Senior Division) on the basis of Principle of merit-cum-seniority and passing a suitability test.
b) by promotion strictly on the basis of merit through limited competitive examination of Civil Judges (Senior Division) having not less than five years qualifying service;
c) by direct recruitment from amongst the Advocates of not less than seven years standing as on the last date fixed for the submission of application forms.
The U.P. Higher Judicial Service Rules, 1975 have been framed in exercise of the power conferred by the Proviso to Article 309 read with Article 233 of the Constitution of India.
The Article 233 of the Constitution of India has been recently interpreted by the Hon’ble Apex Court in the Civil Appeal No.1698 of 2020 (Dheeraj Mor Vs. Hon’ble High Court of Delhi) arising out of SLP (C) No.14156 of 2015 and other connected matters vide decision dated February 19th, 2020 reported in 2020 SCC online SC 213. The Hon’ble Apex Court after considering all aspects of the matter observed as under:-
“59. In view of the aforesaid interpretation of Article 233, we find that rules debarring judicial officers from staking their claim as against the posts reserved for direct recruitment from bar are not ultra vires as rules are subservient to the provisions of the Constitution.
60. We answer the reference as under:-
(i) The members in the judicial service of the State can be appointed as District Judges by way of promotion or limited competitive examination.
(ii) The Governor of a State is the authority for the purpose of appointment, promotion, posting and transfer, the eligibility is governed by the Rules framed under Articles 234 and 235.
(iii) Under Article 232(2), an Advocate or a pleader with 7 years of practice can be appointed as District Judge by way of direct recruitment in case he is not already in the judicial service of the Union or a State.
(iv) For the purpose of Article 233(2), an Advocate has to be continuing in practice for not less than 7 years as on the cut-off date and at the time of appointment as District Judge. Members of judicial service having 7 years’ experience of practice before they have joined the service or having combined experience of 7 years as lawyer and member of judiciary, are not eligible to apply for direct recruitment as a District Judge.
(v) The rules framed by the High Court prohibiting judicial service officers from staking claim to the post of District Judge against the posts reserved for Advocates by way of direct recruitment, cannot be said to be ultra vires and are in conformity with Articles 14, 16 and 233 of the Constitution of India.
(vi) The decision in Vijay Kumar Mishra (supra) providing eligibility, of judicial officer to compete as against the post of District Judge by way of direct recruitment, cannot be said to be laying down the law correctly. The same is hereby overruled.
61. In the case of Dheeraj Mor and others cases, time to time interim orders have been passed by this Court, and incumbents in judicial service were permitted to appear in the examination. Though later on, this Court vacated the said interim orders, by that time certain appointments had been made in some of the States and in some of the States results have been withheld by the High Court owing to complication which has arisen due to participation of the ineligible in-service candidates as against the post reserved for the practising advocates. In the cases where such in-service incumbents have been appointed by way of direct recruitment from bar as we find no merit in the petitions and due to dismissal of the writ petitions filed by the judicial officers, as sequel no fruits can be ripened on the basis of selection without eligibility, they cannot continue as District Judges.
They have to be reverted to their original post. In case their right in channel for promotion had already been ripened, and their juniors have been promoted, the High Court has to consider their promotion in accordance with prevailing rules. However, they cannot claim any right on the basis of such an appointment obtained under interim order, which was subject to the outcome of the writ petition and they have to be reverted.””
Be it noted, the Bench then observes in para 8 that, “In case on hand, the petitioner ceased to be an Advocate under the Advocates Act, 1961 in August 2017 when she got selected as EXAMINER OF TRADE MARK & G.I. It is submitted by learned counsel at that time she surrendered her practicing licence. Thereafter in the year 2019, she was selected as Public Prosecutor in CBI where she is still working. The petitioner is a Public Prosecutor at present but as Public Prosecutor, she has not put in continuous service of 7 years.”
Resultantly, the Bench then minces just no words to hold in para 9 that, “Hence, Deepak Aggarwal (supra) cannot be made applicable to this case. Paragraph 102 of the said decision which has been quoted above will not permit us to grant writ of mandamus for permitting the petitioner in the exam, as she is not qualified practicing period just when she applied in pursuance to the advertisement issued by the present respondents.”
As a corollary, the Bench then directs in para 10 that, “In view of these facts, this petition fails and is dismissed.”
Finally, the Bench then concludes by holding in para 11 that, “We are thankful to both the learned counsels for the parties for ably assisting us.”
In sum, the Allahabad High Court has left no stone unturned to make it absolutely clear in this landmark judgment that advocates need to be in continuous practice for 7 years on date of application to seek appointment as District Judge. It has ably cited relevant judgments also in this regard. The Court noted that the petitioner ceased to be an advocate under the Advocates Act, 1961 in August 2017 when she got selected as Examiner of Trademark & GI and she had surrendered her practicing licence. The Court also pointed out that thereafter in 2019, she was selected as Public Prosecutor in CBI where she is still working. The Court also hastened to point out that she is a Public Prosecutor at present but as Public Prosecutor she has not put in continuous service of 7 years so that she becomes eligible to sit for the final examination. So all these key factors played a big role to convince the Allahabad High Court that the petitioner was not in continuous practice for not less than 7 years [with no break in between] as on the cut-off date and at the time of appointment as District Judge.
As a consequence, the petition of petitioner thus rightly stood rejected! There can certainly be just no denying it!

The Daily Guardian is now on Telegram. Click here to join our channel (@thedailyguardian) and stay updated with the latest headlines.

For the latest news Download The Daily Guardian App.

Legally Speaking

Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

Published

on

Disproportionate assets case: Delhi High Court stays Lokpal proceedings initiated against Jharkhand Mukti Morcha chief Shibu Soren

On Monday, the Delhi High Court has stayed the proceedings initiated by Lokpal of India under the provisions of the Lokpal & Lokayuktas Act, 2013 against Jharkhand Mukti Morcha (JMM) Chief and Rajya Sabha MP Shibu Soren in connection with a disproportionate case of assets.

The bench comprising of Justice Yashwant Varma observed and has passed an order on Soren’s plea challenging the validity of the said proceedings, claiming that the same was ex facie bad in law and without jurisdiction.

In the present case, the proceedings were initiated by Lokpal of India pursuant to a complaint dated August 5, 2020 filed by BJP’s Nishikant Dubey. Therefore, it has been directed by the CBI to make a preliminary enquiry into the Complaint under section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013. It was claimed by Soren that the said order was not served on him.

While claiming the complaint was false, frivolous and vexatious, Soren in his plea submitted that according to section 53 of the Act and there is a statutory bar against the Lokpal of India assuming jurisdiction to investigate or inquire into any Complaint made after the expiry of seven years from the offence alleged.

The plea reads that the initiation of the proceedings under the Complaint, or at the very least, continuation thereof, once it has been demonstrated by the preliminary inquiry that it pertains to alleged acquisitions prior to the 7-year period and is clearly barred by statute, without jurisdiction and the same is liable to be quashed.

Further, the petition filled submits that the maximum period of 180 days for completion of preliminary enquiry from the date of Complaint expired on February 1, 2021. In this backdrop, it has been stated that by this time, only on July 1, 2021, the comments were sought from Soren which is beyond the prescribed statutory period.

The plea adds that the final preliminary enquiry report was submitted by the CBI on 29.06.2022, about a year and a half after expiry of the 180- day period. Such purported report is void and null and non-est in the eyes of law and cannot be received or considered by the Respondent No.1.

Thus, the court took note of the order passed by Lokpal of India dated August 4, 2022 directing that proceedings under section 20(3) of the Lokpal Act be initiated to determine whether a prima facie case existed to be proceeded against Soren. It is Soren’s case that the order was passed without considering the preliminary objection on jurisdiction being raised by him.

In the said order, the court noted that all the Lokpal of India recorded was that the comments received from the petitioner were forwarded to CBI so as to examine and submit an enquiry report.

It was ordered by the court that the challenge to assumption of jurisdiction by respondent no. 1 (the Lokpal of India) has neither been answered and nor dealt with. Matters require consideration. Subsequently, there will be a stay of proceedings pending before the Lokayukta.

Accordingly, the court will now hear the matter on 14 December.

Continue Reading

Legally Speaking

DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

Published

on

DELHI HC SETS ASIDE MURDER CONVICTION & LIFE SENTENCE OF MAN WHO WAS UNPRESENTED BY LAWYER; REMANDS CASTE BACK TO TRIAL COURT

The Delhi High Court in the case Narender @ Lala v. State Of NCT Of Delhi observed and has set aside the orders of conviction for murder and sentence of life imprisonment awarded to a man in 2018 who was unrepresented by a lawyer before the Trial Court. Thus, the Delhi High Court has remanded the case back to the Trial Court for cross examination of certain prosecution witnesses.

The division bench comprising of Justice Mukta Gupta and Justice Anish Dayal observed and was of the view that there had been a grave miscarriage of justice to the man as when number of witnesses were examined, he was not represented by a counsel and that the legal aid counsel, who was present before Trial Court and was appointed on the same day and asked to cross- examine the witnesses on the same day.

On March, 2018, Narender was convicted for offence of murder punishable under section 302 of Indian Penal Code, 1860. On 4th May, 2018, he was sentenced by the Trial Court for life imprisonment and also to pay a fine of Rs. 10,000.

In the present case, the case of the prosecution was that the man had committed murder of his wife by strangulating her to death.

In a appeal, it was argued by the man that during the substantial course of trial, he was not represented by a lawyer and hence the trial in the absence of a lawyer had seriously prejudiced him. He thus sought recalling of all the prosecution witnesses and thereby ensuring a fair trial.

The Court observed that the manner in which the trial is conducted, there was a serious denial of fair trial to the appellant and the appellant is required to be given an opportunity to cross-examine the witnesses i.e., the witnesses examined in the absence of the lawyer, or the lawyer having been appointed on the same day from the legal aid and is asked to cross-examine the witnesses.

Further, the court remanded the back to Trial Court for cross-examination of ten prosecution witnesses. Also, the court directed the Trial Court Judge to follow due process of law and also to record the statement of the man under Section 313 CrPC and permit leading the defence evidence if so required.

The Court ordered that the case be listed before the learned Trial Court on 26th September, when Superintendent Tihar Jail will product the appellant before the learned Trial Court and the learned Trial Court is requested to expedite the trial and conclude the same preferably within four months.

Continue Reading

Legally Speaking

SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

Published

on

SUPREME COURT REFUSES TO ENTERTAIN PLEA CHALLENGING EXCLUSION OF SC/ST RESERVATION IN JHARKHAND DISTRICT JUDGES APPOINTMENT

The Supreme Court in the case Dr. B.R. Ambedkar Educational And Cultural Trust v. Hon’ble High Court Jharkhand And Ors. observed and has refused to entertain a plea challenging the non-inclusion of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes communities in the process of appointment of District Judges in pursuant to an advertisement issued in March, 2022 by the High Court of Jharkhand. The present petition claimed that the exclusion of reservation violates Jharkhand State Reservation Policy and constitutional guarantee under Article 16(4). Apart from this, it is also in derogation of a resolution being passed by the High Court vouching to implement reservation in the Jharkhand Superior Judicial Service.

The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed and has granted liberty to the petitioner to file a petition under Article 226 of the Constitution before the Jharkhand High Court.

The court while considering that the process of appointment as per the concerned notification is underway, Justice Chandrachud asked the petitioner to approach the High Court with respect to future appointments.

It stated that “For the future you can file a petition before the High Court… We will give you liberty to approach the High Court under Article 226 of the Constitution.”

The bench of Justice Chandrachud observed that the Decisions of the Administrative side of the High Court can be challenged before the judicial side of the High Court. You can move the High Court.

In the present case, a writ petition challenging a similar notification was filed in 2017 before the High Court, which was eventually dismissed. It was observed by the High Court that there is no duty vested in the authorities to reserve seats for all posts, more particularly in higher judiciary. Moreover, it had already initiated the appointment process, the High Court opined that it cannot alter the rules midway. Thus, the appeal filed before the Apex Court was also dismissed.

However, in 2018 the Full Court of the Jharkhand High Court had agreed in principle to grant reservation in the recruitment for Jharkhand Superior Judicial Service. The advocates belonging to the SC/ST/OBC communities in 2021 had made representations to the Chief Justice of the High Court requesting for the implementation of the Reservation policy in appointment of District Judges (direct entry from Bar)/ superior judicial service. The impugned notification was issued without incorporating reservation for SC/ST/OBC communities in March 2022.

Mr. Arvind Gupta, Advocate on Record has filled the present petition.

Continue Reading

Legally Speaking

Right to contest election is not a fundamental right; it is only a right conferred by statute: Supreme Court

Published

on

Don’t compare Turban, Kirpan with Hijab: SC

The Supreme Court in the case Vishwanath Pratap Singh vs Election Commission of India observed that the right to contest an election is not a fundamental right but only a right conferred by a statute.

The bench comprising of Justice Hemant Gupta and the Justice Sudhanshu Dhulia observed while dismissing a Special Leave Petition filed by Vishwanath Pratap Singh that an individual cannot claim that he has a right to contest election and the said stipulation violates his fundamental right, so as is required under the Act, to file his nomination without any proposer.

Also, the court imposed a cost of Rupees one lakh on Singh.

In the present case, Singh had first approached the Delhi High Court challenging a notification issued by Election Commission of India for election to Rajya Sabha after he was not allowed to file his nomination without a proper proposer being proposing his name. His contentions were rejected by the High Court that his fundamental right of free speech and expression and right to personal liberty has been infringed.

While dismissing the SLP, the Apex Court observed that the writ petition before the High Court was entirely misconceived.

The bench observed while referring to earlier judgments viz Javed v. State of Haryana, (2003) 8 SCC 369 and Rajbala v. State of Haryana (2016) 2 SCC 445 wherein it was stated that the right to contest an election is neither a fundamental right nor a common law right. It is a right conferred by a statute.

However, the Supreme Court in Javed (supra) had made the following observations: Right to contest an election is neither a fundamental right nor a common law right and it is a right conferred by a statute. At the most, in view of Part IX having been added in the Constitution of India that a right to contest election for an office in Panchayat may be said to be a constitutional right and a right originating in the Constitution and given shape by a statute. But even if, it cannot be equated with a fundamental right. It is stated that there is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or from holding, an elective statutory office.

It was held in Rajbala (supra) that the right to contest for a seat in either of the two bodies is subject to certain constitutional restrictions and could be restricted further only by a law which the parliament made.

Further, the court added that Singh did not have any right to contest election to the Rajya Sabha in terms of the law made by the Parliament.

The Court stated while dismissing the SLP that the Representation of People Act, 1950 read with the Conduct of Elections Rules, 1961 has contemplated the name of a candidate to be proposed while filling the nomination form. However, it cannot be claimed by an individual that he has a right to contest election and the said stipulation violates his fundamental right, so as to file his nomination without any proposer as is required under the Act.

Continue Reading

Legally Speaking

Post-conviction compounding of offences is permissible: Himachal Pradesh High Court

Published

on

The Himachal Pradesh High Court in the case Shri Kantu Ram v Shri Beer Singh recently observed that a court, while exercising powers under Section 147 of the Negotiable Instruments Act and can proceed to compound the offences even after recording of conviction by the courts below.

The bench comprising of Justice Sandeep Sharma observed in a case where the revision Petitioner, who was convicted under Section 138 of the NI Act by the Magistrate Court and was aggrieved by subsequent dismissal of appeal by the Sessions Court and had agreed to pay the amount due and settle the matter.

Thus, the petitioner had sought compounding of offences.

In the present case, the respondent admitted the factum with regard to receipt of the amount due from the accused and expressed that the prayer made on behalf of accused for compounding of offence can be accepted.

However, the High Court allowed the prayer and the offence committed by the Petitioner under Section 138 NI Act was ordered to be compounded.

The Court observed that the Reliance was placed on Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein the Apex Court has categorically held that court, while exercising power under Section 147 of the NI Act and can proceed to compound the offence even after recording of the conviction by the courts below.

Continue Reading

Legally Speaking

‘Pensionary benefits to employee, who is removed from service for misconduct, is not at par with those who retire on superannuation’

Published

on

The Jammu and Kashmir and Ladakh High Court in the case Bashir Ahmad Wani v Jammu and Kashmir Grameen Bank and Another recently observed and stated that an employee who is removed from service for misconduct is not at par with those who is being retired on superannuation.

The bench comprising of Justice Sanjeev Kumar observed while dismissing the pension claim made by a former employee of the J&K Grameen Bank, who was removed from service in 2011.

In the present case, the petitioner had sought benefit of the J&K Grameen Bank (Employees) Pension Regulations, 2018 whereby provision was made for terminal benefits.

However, the court disallowed the claims on two grounds:

Firstly, that at the time of removal of the petitioner from service when there were no norms, rules or regulations providing for the benefit of pension to the employees of the respondent-Bank.

In the year 2011, the employees of the respondent-Bank were governed by the J&K Grameen Bank ( the Officers and Employees) Service Regulations, 2010… it is abundantly clear that it does not prescribe imposition of a penalty of removal along with the pensionary benefits.

Secondly, it was opined by the court that though the 2018 Regulations had been made applicable to those employees who were in service between 1st day of September, 1987 and 31st day of March, 2010 and the employees retired from the services of the Bank before 31st day of March, 2018, however, this leeway cannot come to aid of the Petitioner.

The Curt observed that the reason for finding that the Petitioner was not an employee who had “retired” on superannuation from the bank. Rather, he was “removed” for misconduct.

The Court stated that the regulations apply to those employees who retired from the service of the Bank before 31.03.2018 and not the employees who were terminated for misconduct. Viewed thus, the order of removal of the petitioner dated 02.09.2011 holding the petitioner entitled to terminable benefits and cannot, by any stretch of reasoning, be construed to be an order of removal with the benefit of the pension. Neither, the petitioner, at the time of his removal from service, nor with the promulgation of Pension Regulations of 2018, is entitled to the benefit of pension.

Accordingly, the court dismissed the petition.

Continue Reading

Trending