Judgments – Law declared by the Courts: September 2022

Monday, September 12, 2022

A probationer can resign without serving 3 months’ notice period and any amount paid by the employee is liable to be refunded by the employer – Delhi High Court (DB)

08 September 2022

Delhi High Court (DB)

A probationer can resign without serving 3 months’ notice period and any amount paid by the employee is liable to be refunded by the employer – Delhi High Court (DB)

On 13.12.2019, Mr. Paras Khuttan was appointed as Manager (Law), on probation basis, in GAIL India Ltd.

On 15.01.2020, Paras resigned from service and requested for relieving on 22.01.2020 since, as a probationer, he was not required to serve any notice period.

GAIL India Ltd., however, insisted that Paras is required to serve 3 months’ notice period and only thereafter his resignation will be accepted by GAIL India Ltd.

Having no option, Paras served GAIL India Ltd. for 1 month and paid 2 months salary in lieu of remaining notice period.

GAIL India Ltd. thereafter accepted the resignation letter and Paras was finally relieved from service on 17.02.2020.

Thereafter, Paras filed a writ petition [W.P. (C) No. 4617/2020] before the Hon’ble Delhi High Court thereby seeking refund of his 2 months salary which he was forced to pay to GAIL India Ltd. at the time of resignation. The said writ petition was, however, dismissed vide order dated 10.02.2021 by the Delhi High Court.

Being aggrieved by the Order dated 10.02.2021, passed by the Single Judge Bench of Hon’ble Delhi High Court, Paras filed a Letters Patent Appeal [LPA 285/2021] before the Division Bench of the Hon’ble Delhi High Court.

Vide Order dated 08.09.2022, the LPA was allowed and GAIL India Ltd. was directed to refund 2-month salary to Paras. The directive paragraphs of the Order dated 08.09.2022 are reproduced below for ready reference: -

“42. The present case is an open and shut case of a probationer whose services could have been terminated at any point of time and the probationer was well within the right to resign at any point of time as he was not an employee and he was not covered under Clause 8.1 of the Regulations governing the field. This Court is of the considered opinion that the order passed by the learned Single Judge deserves to be set aside and is accordingly set aside. The Petitioner is entitled for refund of the amount deposited by him in lieu of notice period and the same be done positively within a period of 3 months from the receipt of a copy of this Order.

43. With the aforesaid directions, the LPA stands allowed. No orders as to costs.”

[Paras Khuttan Versus GAIL INDIA LTD & ANR., LPA 285/2021, decided on 08 September 2022]

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Anuj Aggarwal

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Saturday, September 10, 2022

What are the minimum qualifying marks for the Economically Weaker Section (EWS) candidates for appointment on the post of TGT (Urdu) Female (Post Code: 53/21) in DOE? – Delhi High Court asks Delhi Government

07 September 2022

Delhi High Court (DB)

What are the minimum qualifying marks for the Economically Weaker Section (EWS) candidates for appointment on the post of TGT (Urdu) Female (Post Code: 53/21) in DOE? – Delhi High Court asks Delhi Government

Ms. Muslima Parveen appeared in the recruitment process for appointment on the post of TGT (Urdu) Female (Post Code: 53/21) in DOE, GNCTD. She obtained 39.39/100 marks in Section A and 62.62/100 marks in Section B i.e., total 102.01/200 marks. She was not shortlisted for uploading the e-dossier by DSSSB. Being aggrieved, Muslima filed an Original Application (O.A. No. 1241/2022) before the Central Administrative Tribunal (CAT), Delhi. Vide Order dated 13.07.2022, CAT dismissed the Original Application.

Being aggrieved by the Order passed by the CAT, Muslima filed a writ petition [W.P. (C) No. 12996/2022] before the Hon’ble Delhi High Court.

Muslima, in her petition, submitted that the cut off marks stipulated by DSSSB for EWS candidates are 108.33 marks, whereas for UR candidates is 83.84 marks, which by itself is illogical, unjustified and amounts to no reservation for the EWS candidates. She also submitted that there is no justification as to how she was awarded with 39.39 marks when each question was of 1 mark.

Muslima also contended that the condition that a candidate must qualify ‘Section A’ and ‘Section B’ separately is unconstitutional and violative of Articles 14, 21 and 21A of the Constitution of India and because of this arbitrary condition, 90% vacancies of TGT (Urdu) Female (Post Code: 53/21) in DOE have remained unfilled. Total 571 vacancies were advertised by DSSSB vide Advertisement dated 27.05.2021, out of which only 57 candidates obtained marks equal to, or above than, the minimum qualifying marks stipulated by DSSSB. It may be noted that total sanctioned posts of TGT (Urdu) Female in DOE are 1,032 posts, out of which 917 posts are lying vacant. That is, in other words, more than 85% vacancies are lying vacant for last several years and DSSSB and DOE, despite advertisements, have not been able to fill these vacancies. Unfilled vacancies directly violate the right to education of children who wants to study Urdu language as a subject.

Keeping in view the acute shortage of qualified Urdu teachers, Delhi Minorities Commission also sought a reply from the DSSSB. Consequently, DSSSB vide letter dated 15.07.2022 informed the Delhi Minorities Commission that DSSSB has taken a decision w.r.t. TGT (Urdu), TGT (Punjabi) and TGT (Sanskrit) posts that “the mandatory minimum qualifying marks will be applicable only in Section B, which is domain subject specific. There will not be any minimum qualifying marks in Section A. However, aggregate marks of both Section A & Section B will be reckoned for preparing the final merit list. This change in policy will be applicable only in r/o vacancies of posts to be notified by DSSSB in future.”

Muslima submitted that the aforesaid decision of DSSSB should not be restricted to the future vacancies but should also be applied to the vacancies advertised in the year 2021.

Considering the submissions made by the petitioner, Delhi High Court issued notice to the Government of NCT of Delhi and directed the Government to file reply within 4 weeks. Directive paragraphs of the Order dated 07.09.2022 are reproduced below for ready reference: -

“1. Issue notice. Notice is accepted by learned counsel appearing for respondents.

2. Learned counsel for the petitioner submits that as per the information, there is no minimum qualifying marks prescribed for the Economically Weaker Section (‘EWS’) category of candidates in Section A and Section B. He further submits that though each question bore one mark, surprisingly the petitioner has been awarded with 39.39 % in Section A.

3. Let counter affidavit be filed within four weeks. Rejoinder thereto, if any, be filed within two weeks thereafter.

4. List on 25.11.2022.

5. Respondent shall also specify as to whether, there is any prescribed minimum qualifying marks in Section A for EWS category, and further they shall explain as to how petitioner was awarded with 39.39 % marks when each question had one mark allotted to it.”

[Muslima Parveen Vs. DSSSB & Anr., WP No. 12996/2022, Date of order = 07.09.2022, next date of hearing = 25.11.2022]