All That’s in A Name :  A Review of Jigya Yadav v. C.B.S.E.

(By Karthika Sanjay, BBA., LL.B. (Hons.) 2019 - 2024,
Jindal Global Law School, Sonipat, Haryana)

Introduction

On June 3, 2021, the Hon’ble Supreme Court in a three-judge bench decision authored by Hon’ble Justice A.M. Khanwilkar inJigya Yadav v. C.B.S.E.¹settled the law relating to the Examination Byelaws of the Central Board of Secondary Education that restricted the quantitative and qualitative changes and corrections that could be made to certificates issued to students by the Board. The litany of 22 petitions that were considered before the Court in this case is symbolic of the numerous petitions filed by students, their parents and guardians across courts in the country, attempting to amend their credentials and details mentioned in the certificates issued by C.B.S.E. The judgement highlights the importance an individual’s name has to their identity, social and public interactions such as their contact with the law through property rights, and begins with the famous quote from Shakespeare’s Romeo and Juliet “What’s in a name? That which we call a rose by any other name would smell as sweet”². While this quotation might be construed a platitudinous reiteration, it effectively illuminates the highly intrinsic nature of names in our society. What one is called by becomes their identity and forms the foundation for the first of prejudices and understandings assigned to their identity by those perceiving them. When the name of an individual is so innate to their identity, should their autonomy and freedom to decide what they must be called by be overridden upon the specious grounds that a set of Examination Byelaws created by an entity such as the Board to regulate the process of altering a name in order to maintain compliant office records? This is exactly the seminal issue discussed and settled through this case.

THE COURT’S REASONING

The Court considered five major points to arrive at its decision. To start with, it examined whether the C.B.S.E. Examination Byelaws have the force of law since the Board performs an essential public function of the State in spite of being registered as an autonomous society under the Societies Registration Act, 1860. C.B.S.E. is the only body conducting examinations across the country created through a resolution of the Central Government. The Court found that for a body to be an instrumentality of State under Article 12 of the Constitution of India it: a) had to be an extension of collective benefit to public by a public authority, b) be a private body performing a public function regulated in a manner similar to a public authority, and c) should participate in social or economic affairs such as education. Following the application of these principles, it was concluded by the Court that C.B.S.E. was in fact a part of State, and the “law” including byelaws created by it under Article 13(3)(a) of the Constitution carried the force of law.

The second prong of the Court’s consideration was whether the byelaws of the C.B.S.E. imposes reasonable restrictions on the exercise of rights guaranteed under Article 19(1)(a) of the Constitution. The Supreme Court has time and again emphasised the importance and sanctity of an individual’s dignity through an abundant number of judgements.³A.M.Khanwilkar, J.J. speaking for the Court quoted Navtej Singh Johar ⁴to highlight the importance of natural identity;

“5. … Destruction of individual identity would tantamount to crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. …”.

A person has the right to define his/her identity at any point of time and altering his/her name is constituent element of this freedom of expression of identity under Article 19 of the Constitution. The very nature of the Article reveals that this freedom is not unconditional nor an absolute right, and can be restricted reasonably to satisfy public policy interests and obviate confusion. The deciding question here becomes whether the Examination Byelaws constitute just and reasonable restrictions upon this freedom, made and maintained in the interest of the general public. According to the test of reasonableness, the impugned law must be drafted intelligently; crafted in a manner that it is able to justify the ultimate impact of the law on its subjects. The Board’s Examination Byelaws have been created with a very privileged and cisgendered underlying assumption that there would arise no legitimate situation that would warrant the change of a student’s name after the publication of examination results. It places a clear embargo on the right of a student to change their name after the publication of results without a prior court order and does so without taking into account the uncertainty of timeline required to obtain such an order. The Court also found that the overriding state interest expressed through the Board’s Byelaws to retain this stringency is nothing but its interest in efficiency of administration, which can in no situation be used to justify a nonperformance of essential function by an instrumentality of the State. It also noted that a more reasonable way to maintain this efficiency would be to restrict the number of times alterations could be made to the records and not set a total prohibition, making it virtually impossible to alter the records post the publication of results and issuance of certificates. Considering that the students who are filing petitions to alter their credentials stand to lose a lot more in their life and future due to inaccuracies in the certificates and are of a young and becoming age, while the Board is in a position of power with its sole cause of worry being loss of administrative efficiency, the balance of convenience would unequivocally tilt in favour of the students.

Thirdly, the Court considered whether the Board would be obliged to carry out changes or corrections in the documents due to the statutory presumption of genuineness attached to public records and documents, including those issued by it. It was held by the Court in a 2009 judgment that the records maintained by statutory authorities have the presumption of correctness in their favour and that they would prevail over any entry maintained in the school register.⁵With regards to whether the production of updated public documents could effect changes in the certificates issued by the Board, it was contended that there was no other practical and independent mechanism in place to verify the genuineness of these public documents submitted to C.B.S.E.as proof. Reference could also not be made to records maintained by schools due to validity and accountability concerns. Amendments made to certificates issued by the Board without an efficient and effective test of genuineness of submitted public documents would render the legitimacy and sanctity of the certificates issued by the Board questionable. The only workable mechanism around this limitation of C.B.S.E. as a body is to direct the students seeking to make changes in their documents through obtaining an order from the courts, who could allow or dismiss the claims based on necessity and genuineness.

The fourth point of consideration before the Courts was relating to whether the limitation period for corrections from the date of declaration of results to issue of certificate was reasonable and whether a change made within this limitation period would have retrospective implications. The Byelaws provide that the limitation period for corrections and changes to be made to the certificates issued by C.B.S.E. is between the date of declaration of results till the formal issuance of certificates, during which the students have access to the contents mentioned in the document and can request for changes to be made. Evidently, this limitation period prescribed in the Byelaws is heavily reliant on the dates of declaration and issuance of documents and it would become superfluous if the Byelaws in existence at the time of application of changes, post the formal limitation period, are held applicable. The Court also held that the changes made in the certificates issued by the Board are remedial in nature and only have a prospective effect, implying that it does not ipso facto warrant a retrospective effect.

Lastly, the Court examined whether it would be proper for High Courts to issue mandamus with regards to the correction of certificates in violation of the Board’s Byelaws without evaluating the validity of the Byelaws itself, and assessing the right of students to seek such a direction from the Court. While the primary condition for the issuance of mandamus is the existence of a legal right against a body which is either a part of State or constitutes its instrumentality, the Court observed that in majority of the litigation covering the issue at hand the question regarding whether the students approaching the constitutional courts had a legally enforceable right in their favour was unaddressed and overlooked. In the absence of inquiry into the legal right of students to approach the courts and the vires of the Byelaws, the judgements delivered by the constitutional courts should be seen as extraordinary remedies delivered due to extraordinary and deserving facts of the cases in exercise of its wide array of powers under Article 226. These sympathetic applications of fundamental rights need to address the circumstances that drew such a remedy and cannot be used as precedent. The Court by quoting the two-judge bench decision in Md. Sarifuz Zaman ⁶  conveyed its position that permitting changes to details mentioned in certificates must be done with extra caution and care to ensure that this remedy is not abused or applied arbitrarily. According to the Court, no two cases for change of names or dates of birth can be done with the same yardstick or “judicial eye”, especially when such a change may be prohibited by the Byelaws.

Further, the Court laid out an express distinction between “corrections” and “changes” that can be made to the documents. “Correction” here refers to alterations to be made in the issued certificate in consistence to the school records and C.B.S.E. was directed to ensure that a procedure for applying to make these corrections within reasonable regulations and limitation period is put in place. It may or may not grant permission to affect such a correction based on its discretion. However, in case the proposed “change” is on details that are inconsistent with those maintained in the school records, a request may be made through providing public documents like Birth Certificate, Aadhar Card etc. or due to an acquired name at a later point of time, which may not be supported by public documents. In the former, C.B.S.E. may entertain a request for change on the basis of the legal presumption of genuineness attached to public documents subject to reasonable conditions, and may insist on issuance of a Public Notice and publication in the Official Gazette according to the change in the new certificate. Since the latter is unsupported by both public documents and school records, the Court expounds that the Board may insist for prior permission or declaration made through a Court of law to that effect and its publication in the Official Gazette, along with the surrender of the original certificate issued by the Board and payment of prescribed fees.

A PEEK INTO SOCIETAL IMPLICATIONS 

Exclusionary impact on transgender persons

The latter method of changing one’s name through obtaining a prior declaration from the courts of law would have a disproportionate and exclusionary impact on the members of the transgender community. While transgender was legally recognized as the third gender by the Supreme Court in 2014,⁷the derivative rights required to ensure a fulfilling, secure, safe, healthy and equal life for persons self-identifying as transgender are not fully guaranteed and available to them. The transgender community remains one that is heavily policed by the state and society, resulting in systemic exclusion, erasure, violence inflicted upon them and unequal employment opportunities. Any analysis of this judgement without considering the impacts it may have on the transgender and non-binary community would be incomplete as it would have a stricter and more systemically violent impact on the limited opportunities available to them in employment and education. This would serve as an embargo, gatekeeping them from securing employment in the formal sector with sufficient job security and financial stability, and force them to continue working in the traditional and highly dangerous means of livelihood including prostitution and begging.

Potential for assuming an anti-caste position

It is paramount to realise the power that names and identities hold in a caste-based society like India.  Due to the prevalence of a tradition of adding caste names to the names of individuals belonging to different castes and sects, naming and guidelines directing the name-changing process hold enormous power to accelerate social justice and can assume an anti-caste position. Historically, names have been used by savarna persons to maintain their caste-based social capital and demean Dalit persons and community by assigning them undignified names ⁸. Using names with caste suffixes to hoard employment opportunities within one’s community, and exclude Dalit persons and other religious minorities are still prevalently used by savarna persons who still control majority of the means of production and consequently, employment opportunities. While provisions preventing citizens from altering their original names to ones with caste-based suffixes or other names that may be perceived generally as offensive and derogatory names socially would not annihilate the deeply entrenched caste system and other divisive prejudices, it may serve as a positive step towards achieving social justice and equality.

IV. CONCLUSION

Names form such an integral and essential part of any subject’s identity in our society. It enables them and dictates the manner in which they will be interacted with in social and public interactions. While a person may wish to alter their names in exercise of whimsical privilege and their autonomy to do so, it becomes very important to study the politics of names within the society and persons it empowers and excludes. Transferring the power to create guidelines regarding changing of names to the State remains both democratic and arbitrary.  When an instrumentality of State creates guidelines with an underlying intention of exclusion and prohibition to the exercise of the freedom of expression through one’s name, it becomes arbitrary. Imposing such restrictions and hurdles in the process of altering one’s name and in extension, their identity, in the manner exhibited by CBSE in this case for obviating confusion, ensuring clarity in public documents and maintaining administrative efficiency in an increasingly connected world with recorded biometrics and digital records of identity of a person seems like a futile and armed effort to ensure more state control over an individual’s liberties.

Foot Notes

1. 2021 (3) KLT 711 (SC).

2. Romeo and Juliet. Act II. Scene II. William Shakespeare. 1914. The Oxford Shakespeare.
Accessed July 25, 2021. https://www.bartleby.com/70/3822.html.

3. National Legal Services Authority v. Union of India and Ors.(2014 (2) KLT 378 (SC) =
(2014) 5 SCC 438); Navtej Singh Johar and Ors. v. Union of India through Secretary, Ministry of Law and Justice(2018 (4) KLT 1 (SC) = (2018) 10 SCC 1) and K.S. Puttaswamy and Anr. v. Union of India and Ors. (2017 (4) KLT 1 (SC) = (2017) 10 SCC 1.

4. Navtej Singh Johar(supra).

5. CIDCO v. Vasudha Goraknath Mandevlekar (2009 (3) KLT Suppl.398 (SC) = (2009) 7 SCC 283). 

6. Board of Secondary Education of Assam v. Md. Sarifuz Zaman(2003 (3) KLT OnLine 1256 (SC) = (2003) 12 SCC 408.

7.    National Legal Services Authority (NALSA) v. Union of India(2014 (2) KLT 378 (SC) =
AIR 2014 SC 1863).

8.  Sarveswar, Sipoy. “‘Karnan’: How Caste Politics, Social Movements Influence Names.” The News Minute, May 28, 2021. https://www.thenewsminute.com/article/karnan-how-caste-politics-social-movements-influence-names-149672.

Examining the Unconstitutionality of the Kerala Lok Ayukta Act, 1999

(By T.P. Abdul Jabbar, Advocate, Tirur, Malappuram)

It is the sign of a matured democracy to be having zero corruption and optical transparency from the lowest body to the highest body. To fulfill that, we do need necessary checks and balances. The Kerala Lok Ayukta Act, 1999 (Act 8 of 1999) has been passed by the Kerala Legislative assembly in this regard. The Lok Ayukta under the Kerala Lok Ayukta Act, 1999 (Act 8 of 1999) has been constituted for investigating into the allegations of corruption and mal-administration against public servants and for the speedy redressal of grievances of the public.

Nonetheless, it is conspicuous that some of the sections of the Kerala Lok Ayukta Act, 1999 (Act 8 of 1999) is unconstitutional. This is a humble attempt to examine the unconstitutional character of the Kerala Lok Ayukta Act, 1999 (Act 8 of 1999) for a fruitful debate in the legal fraternity.

To point out the unconstitutional character of the Kerala Lok Ayukta Act, 1999 (Act 8 of 1999), there shall be unequivocal sections which override the constitution. Especially, Section 14 of the said act violates the constitutional powers and prerogatives of the governor and the Chief Minister of the state. Article 164(1) of the constitution states that:

The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor.

In fact, Articles 164(1B) and 164(4) categorically defines a Minister’s Constitutional disqualification. So, if a minister comes under the purview of Article 164(1B) and 164(4) they shall cease to be a minister even the Governor is having pleasure over him.

Under writ jurisdiction, Supreme Court and High Court can issue respective writs to oust the Chief Minister or any other Ministers. In such Circumstances, the minister shall vacate the office as per the constitution. So, the Constitution clearly says that in which circumstances a person ceases to be a minister even if he holds the pleasure of the Governor. All other Provisions which are inconsistent with the constitution is invalid and unconstitutional so long as the constitution is amended to that extent.

Kerala Lok Ayukta Act, 1999 Section 14 states that:

Public Servant to vacate office if directed by Lok Ayukta etc.-

(1) Where, after investigation into a compliant, the Lok Ayukta or an Upa-Lok Ayukta is satisfied that the complaint involving an allegation against the public servant is substantiated and that the public servant concerned should not continue to hold the post held by him, the Lok Ayukta or the Upa-Lok Ayukta, as the case may be, shall make a declaration to that effect in his report under sub-section (3) of Section 12. Where the competent authority is the Governor, the Government of Kerala or the Chief Minister, he or it shall accept the declaration. In other cases, the competent authority concerned shall send a copy of such report to the Government, which shall accept the declaration.

(2) When the declaration so made is accepted the fact of such acceptance shall immediately be intimated by registered post, by the Governor, the Government or the Chief Minister, if any of them is the competent authority and the Government, in other cases and then, notwithstanding anything contained in any law, order, notification, rule or contract of appointment, the public servant concerned shall, with effect from the date of intimation of such acceptance or deemed acceptance of the declaration-

(i) if he is the Chief Minister or a Minister, resign his office of Chief Minister or Minister, as the case may be;

So, in effect the aforementioned section gives tantamount power to a quasi-judicial body for issuing direction to the Governor and the Chief Minister to oust a Minister even if the Governor possesses pleasure over the Minister which is a clear contradiction to the Article 164 of the constitution.

Hitherto, the power given to an authority which holds a right to pronounce unappealable orders is indeed unconstitutional. In this regard, Blackstone has rightly observed that “if all the powers were given to one man, there was an end of personal liberty”. To vindicate someone’s innocence, he shall be given the right to appeal till the apex court. Otherwise, we do need to say that his natural justice is curtailed. No body shall be given supreme powers except the Supreme Court. To conclude, as Lord Acton says, “Power corrupts, and absolute power corrupts absolutely.”

Perpetual Injunctions -- A Misconcieved Oxymoron !

(By Anoop Bhaskar, Advocate, Thiruvananthapuram)

“How can you ask for a perpetual injunction for a specific period of time? Don’t you know that perpetual injunctions are permanent injunctions and they cannot be granted for a limited point of time. Learn the fundamentals of temporary and permanent injunction. Counsel your suit won’t stand !”

If not to all, these court room comments might appear legitimate to at least a good number of people among the legal community. Here let us try to understand its correctness by decoding the true meaning of Perpetual injunctions. The larger question sought to be addressed is whether injunctions, as a matter of fact, can ever be permanent or perpetual? Yet another rhetorical question that is beneficial to pose is, “Are all permanent injunctions temporary?”.¹

Injunctions, as known, are preventive reliefs granted by the Courts to protect a legal right. Originally these were common law rights, which later found its way to the statute books.²However they are still guided by equitable principles and completely fall within the realm of discretionary prerogative of the Courts. Injunctions are broadly classified into Temporary and Permanent injunctions. The classification is done with reference to the stage in the lis at which it is granted. Then based on the nature or character of injunctions, it is further termed as Prohibitory or Mandatory injunctions. It is the former classification which needs to be reflected for answering the questions mentioned above.

So when injunctions are granted at a preliminary stage of a case or before finally adjudicating the rights of parties, we call them temporary injunctions.³ This category of injunctions is very often referred to as ‘ad-interim’, ‘interlocutory’ and ‘pendente lite’. Those injunctions granted at the conclusion of a case after deciding the merits of a dispute belong to the second category and are named as Permanent or Perpetual injunctions. The prefix ‘permanent’ and ‘perpetual’ attached to these injunctions paint a picture of an eternal relief that lasts forever. This is just an illusory perception which waters down the reasoning attached to the classification of injunctions based on the stage at which it is granted by the Court. Instead one should decipher the words ‘permanent’ and ‘perpetual’ to mean ‘final’ when used in the context of perpetual or permanent injunction.

Apart from the literal comprehension of the term perpetual, another reason for this confusion lies within the framework of Section 37 of the Specific Relief Act, 1963 which reads as:

37. Temporary and perpetual injunctions. — (1) Temporary injunctions are such as are to continue until a specific time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908).

(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.

From a reading of these provisions it is seen that both the injunctions are explained under two heads. One being the stage of a suit at which it is granted and the other being the tenure for which it lasts. The former distinction is succinct and needs no further clarification. But the second distinction provides scope for some confusion. Let us see how.

When we look at the explanation given for temporary injunctions, emphasis is placed on the period for which it lasts. It expressly says such injunctions continue until a specific time or until further orders. Now when we move to perpetual injunctions, it goes on to state that the defendant is perpetually enjoined from the assertion of a right or from the commission of an act. So at the first blush, one would get an impression that perpetual injunctions are perpetual or permanent in nature which continues to run for an indefinite period of time. This happens when we fail to give due weightage to the concluding portion of the Section, which reads as, “which would be contrary to the rights of the plaintiff.”. One should not forget that the perpetuity of a perpetual injunction is tied to the rights of a party. In short, a perpetual injunction will only continue to restrain the defendant from asserting a right or committing an act against the plaintiff until the plaintiff enjoys certain rights. Therefore the distinction of temporary and prohibitory injunction with reference to its tenure does not confer perpetuity or permanency to the latter class of injunctions in its literal sense.

For instance, when a licensee faces a threat of trespass in contravention to the terms of licence or disturbance to his peaceful occupation by the licensor, he may institute a suit for a permanent prohibitory injunction restraining such acts. But is he entitled for such a decree of perpetual injunction for an indefinite period of time? What if the licensor acquires the right to enter that property by way of a subsequent contract or due to the expiry of licence period or due to revocation of licence? So in such cases, is it wrong for the licensee to seek a decree of perpetual injunction until that particular period or until he chooses to exercise his rights against the licensor? To give a closure to such potential questions, it is suggested that the relief in a suit for a permanent prohibitory injunction should specify in clear terms, the period for which it should operate, rather than leaving it open ended which will create an impression of ‘forever’. For example, in a set of facts wherein the licensor is denied entry into the licensed premises, a prayer for perpetual injunction restraining the defendant from trespassing into the plaint schedule property until the expiry of licence or until the plaintiff chooses to remain in occupation of the property is legally more sound instead of seeking a blanket decree of permanent injunction restraining the defendant from trespassing into the plaint schedule property. It may be argued that technically such a course need not be resorted, as the rights are pleaded in the body of the plaint and they get adjudicated to be set out in the judgement. However such a practice only renders complete justice to the statutory mandate under Section 37(2) of the Act and Order VII Rule 7 of C.P.C.⁴ and the jurisprudential principle on which it rests.

To conclude by disregarding the jurisprudence underlying the remedy of injunctions will cause to leave a hole in this attempt to find an answer to the question involved here. So when we trace its jurisprudence it will lead us to understand that injunction is a remedy in-personam. It is a remedy available to a person against another person. One cannot assert an injunctive relief against the world at large, leave apart ‘Gag Orders’⁵ or ‘John Doe Orders’⁶ that have evolved as modern day injunctive reliefs. Thus an order of injunction emanates from a person’s rights and ends with him or his rights or with the person against whom he asserts those rights. This should mean that all permanent injunctions are nothing but temporary! There is no magic in the term perpetual injunction which elevates it to an eternal status. The result of these deliberations will lead us to invariably conclude that no injunctions can ever be perpetual or permanent irrespective of the epithet associated with perpetual injunctions and one can always call the phrase “perpetual injunction” as a misnomer or a misconceived oxymoron!

Foot Note

1.See Note, Are all permanent injunctions temporary, Michigan Law Review, Vol.23, No.4
(Feb., 1925), pp.382-385.

2.Part III of the Specific Relief Act, 1963; Section 94 and Order XXXIX of the Code of Civil
Procedure, 1908; Section 35 of the Indian Easements Act, 1882 etc.

3.As an exception, Order XXXIX Rule 2 provides for a temporary injunction to be granted after judgement for a limited duration.

4.Order VII Rule 7: “ Relief   to be specifically stated - Every plaint shall state specifically the relief  which the plaintiff claims………….”

5.   Orders prohibiting disclosure of information to the public by media or any person. Orders directed against persons or class of persons who cannot be identified.

Some Thoughts on the Plight of the Auction Purchaser in Execution

(By K.G. Balasubramanian, Advocate, High Court  Kerala)

2021 (1) KLT 631 (F.B.) - Danish Varghese v. Jancy Danish –and some ensuing dialogues inflamed a thought I had abandoned long ago because there was no purpose in flogging a dead horse. Has “Danish” rejuvenated that horse? No, I would like to think. I would console myself that some observations in “Danish” do not constitute ratio decidendi, but obiter dicta.

It was held in A.S.K. Krishnappa Chettiar v. S.V.V. Somiah(1963 KLT OnLine 1284 (SC) = AIR 1964 SC 227) that “The Limitation Act is a consolidating and amending statute relating to the limitation of suits, appeals and certain types of applications to courts and must, therefore, be regarded as an exhaustive Code. It is a piece of adjective or procedural law and not of substantive law.Rules of procedure, whatever they may be, are to be applied only to matters to which they are made applicable by the legislature expressly or by necessary implication. They cannot be extended by analogy or reference to proceedings to which they do not expressly apply or could be said to apply by necessary implication. It would, therefore, not be correct to apply any of the provisions of the Limitation Act to matters which do not strictly fall within the purview of those provisions. Thus for instance, period of limitation for various kinds of suits, appeals and applications are prescribed in the First Schedule. A proceeding which does not fall under any of the articles in that schedule could not be said to be barred by time on the analogy of a matter which is governed by a particular article.”

In N. Balakrishnan v. V.M.Krishnamurthy (1998 (2) KLT OnLine 1238 (SC) =(1998) 7 SCC 123), their lordships opined that “Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts.So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy”.

The conflict between substantive and procedural provisions was sought to be resolved in Saiyad Mohammad Bakar El-Edroos v. Abdulhabib Hasan Arab (1998 (1) KLT OnLine 1168 (SC) = (1998) 4 SCC 343 : AIR 1998 SC 1624) in the following words: “A procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved. A procedural law is always subservient to the substantive law. Nothing can be given by a procedural law what is not sought to be given by a substantive law and nothing can be taken away by the procedural law what is given by the substantive law”.

In the matter of powers of execution court, Kassim Rawther v. Mytheen Beevi (1988 (2) KLT 812: 1988 (2) KLJ 922) lays down that ‘The non obstante clause incorporated in the said Rule with the words “notwithstanding anything to the contrary contained in any other law for the time being in force” apparently excludes operation of the provisions of all other statutes including S.125 of the KLR. Act. With the words “be deemed to have jurisdiction” a legal fiction is made and jurisdiction is re-conferred on the civil court to decide all questions including questions relating to right, title or interest in the property in the special circumstances envisaged in R.97 and 99 of O.21. C.P.C. (Amendment) Act 104 of 1976 came into force as early as 1.2.1977. The Land Reforms Act came into force as early as 1.1.1970. Parliament by incorporating R.101, as it stands now with the non obstante clause as wide as it is, must be presumed to be aware of all the existing statutes. The object of incorporating R.101 is to clothe the execution court with jurisdiction to decide all questions relating to “the right, title and interest in the property”. The Committee which piloted the amendment to the Code felt that absence of jurisdiction, pecuniary or otherwise, to decide the questions of right, title or interest in the property may lead to further delay in disposal of execution matters. It was hence recommended that execution court should be clothed with jurisdiction to decide all such questions so that such questions may be heard and finally decided by the execution court itself. It was to facilitate the aforesaid object that R.101 with a widely worded non obstante clause had been incorporated by Parliament in the Code. When the object of the amendment is thus understood, the later enactment has the effect of superseding the provision in the earlier enactment through the non obstante clause in such cases where R.101 applies’. [I do have some strong reservations about this ratio].

Ganpat Singh (Dead) By Lrs. v. Kailash Shankar & Ors.(1987 (1) KLT OnLine 1057 (SC) =(AIR 1987 SC 1443:1987 SCR (3) 355) has laid down that “It may be that before the amendment of S. 47 of the Code, an auction purchaser could file a suit for recovery of possession of the property within 12 years from the date of sale, but in view of the amendment of S. 47 of the Code such a suit cannot be filed.But that is no ground for holding that Art. 136, Limitation Act, would apply to an application for delivery of possession. Under the old Limitation Act of 1908, an application for delivery of possession could be made within three years from the date on which sale became absolute as prescribed by Art. 180 of that Act, but under Art. 134, Limitation Act, 1963 such an application can be made within one year from the date on which sale became absolute. ----------------- We would, accordingly, hold that Art. 134 will apply to an application under O. 21 R. 95 Civil P.C. by the auction purchaser for delivery of possession of the property sold in execution of a decree”.

Bengal Immunity Co. Ltd. v. State of Bihar(1955 KLT OnLine 1007 (SC) =AIR 1955 SC 661) laid down that “One application of this rule is that when there is a law generally dealing with a subject and another dealing particularly with one of the topics comprised therein, the general law is to be construed as yielding to the special in respect of the matters comprised therein. Now, the reason of the rule requires that it should apply whenever there is overlapping of the fields occupied by two conflicting enactment’s, and when that is shown, it would not be logical to exclude its application on the ground that the enactment’s have been made with a different purpose. It is the identity of the subject matter of the conflicting provisions, not the identity, of their purpose or angle of vision that is essential for the application of the maxim.”

In Kochunni Kartha & Others v. State & Others (1961 KLT 84: 1961 KLJ 103), it was held that “It cannot, however, be disputed that where the provisions of the later Act be so inconsistent with and repugnant to the provisions of an earlier Act that the two cannot stand together repeal by necessary implication takes place. Craies on Statute [Fifth Edn. at p. 352) states this legal position in these words: And if a special enactment, whether it be in a public or a private Act, and a subsequent general Act are absolutely repugnant and inconsistent with one another, the Courts have no alternative but to declare the prior special enactment repealed by the subsequent general Act.”

C.P.C. provided for some fresh suits in certain situations vide Order XXI Rule 63. Article 65c would have had relevance to such suits. That lost steam after 1976.Quaere. In other words, Article 65c stands impliedly repealed by amendment to Section 47 and Order XXI C.P.C. in 1976. It is well neigh impossible to find a suit that is not barred under section 47.

Following Noorduddin v. K.L. Anand (1994 (2) KLT OnLine 1134 (SC) = 1995 (1) SCC 242) and some other precedents, a division bench answered the question in Unnikrishnan v. Kunhibeevi 2011 (1) KLT 508 thus: “So what we notice from the catena of decisions referred to above, rendered by the Apex Court, is that by virtue of the Amendment Act, 1976, a sea change with respect to the resolving of disputes over the executability of a decree for possession has taken place after the amendment Act of 1976 to the Code, by which the provisions covered by R.97 to 103 of O.21 of the Code lay down the scheme for adjudication of all disputes over the right, title and interest of any person over the property covered by the decree, and once the execution has commenced the execution Court alone can consider such disputes and it, cannot be agitated by a separate suit. Even if a suit is entertained challenging a decree for possession of property before commencement of the execution proceedings of such decree, the scheme covered by the provisions of R.97 to 103 of O.21 after the amendment spells out that if the execution of that decree has culminated in a Court sale of the property or the plaintiff in that suit has already been dispossessed, the claim raised over the property has to be adjudicated only by the execution Court and not by any other Court”. This decision does not appear to have been brought to the notice of their lordships in “Danish”.

The Limitation Act does not generally create a positive right to property, but only bars the remedy to enforce an existing right. If a suit is barred u/S.47, it cannot be enforced only because of Article 65c. Prima facie, any such suit will be a misconceived hardscrabble. The amendment to Section 47 and Order XXI C.P.C. is to ensure that the system is not haunted by revenants. The observation in “Danish” that “suits which do not offend S.47 C.P.C. and suits for possession on the strength of title deed including purchase certificate that fall within the frame work of Article 65 of Limitation Act would be maintainable” may cause unworthy causes to be rekindled.

Tail piece: A few situations contemplated by some articles in the Limitation Act have become either otiose or irrelevant in civil courts by passage of time and change in law. Is it not high time to eschew obsolete intricacies and prescribe 3 years period of limitation for filing of many suits instead of different articles prescribing same period of limitation?

Selection, Extension, Conformation & Termination of A Probationer

 Advocate H.L. Kumar

The period of probation furnishes a valuable opportunity to the employer to closely observe the work of the probationer and by the time the period of probation expires, to make up his mind whether to retain him/her by absorbing him/her in regular service or to dispense with the service. Period of probation may vary hence it is obligatory on the employer to prescribe a period of probation.

The expression ‘probationer’, its extension, confirmation or termination has given rise to a large number of judgments either of Supreme Court or High Courts. Certain ambiguities are clarified by interpreting the expression ‘probationer’ depending upon the given facts but sometime such interpretations have led to more controversies hence resulting into large number of cases arising again and again for judicial interpretations.

The term ‘probationer’ is nowhere defined in any statute pertaining to labour matters except that clause (c) Order 2 of ‘Model Standing Orders in respect of Industrial Establishments not being Industrial Establishment in Coal Mines’ which provides as under:

“A ‘probationer’ is a workman who is provisionally employed to fill a permanent vacancy in a post and has not completed three months’ service therein. If a permanent employee is employed as a probationer in a new post he may, at any time during the probationary period of three months, be reverted to his old permanent post.”

It is pertinent to make reference to the fundamental judicial pronouncements pertaining to the status of a probationer. In a landmark judgment, the Constitution Bench of the Supreme Court1 has held the status of a probationer and his termination from service as reproduced below:

“The period e.g., for six months or for one year or it may be expressed simply as ‘on probation’ without any specification of any period. Such an employment on probation, under the ordinary law of master and servant, comes to an end if during or at the end of the probation, the servant so appointed on trial is found unsuitable and his service is terminated by a notice.”

The Supreme Court and High Courts have relied upon the above landmark judgment by holding that the object in engaging a probationer is to test his performance and the employer can terminate his service if found unsatisfactory.²

It is thus pertinent that the employer must incorporate the probation clause in the appointment letter by adopting the following language :

In the first instance you will be on probation for a period of ……. from the date of your joining, where after the probation period may be either extended at the discretion of the management or may be dispensed with either earlier or on completion or thereafter till confirmation. Unless confirmed in writing, you will be deemed as probationer after the expiry of the initial or extended period of probation. Your services are liable to be terminated without any notice or wages in lieu thereof during the initial or extended period of probation.

As regard to period of probation, if the employer has certified standing orders, there should not be conflict between the standing orders and the appointment letter particularly about period of probation since the terms and conditions of employment in the certified standing orders cannot be more than as contained in standing orders. For instance if the certified standing orders provide that the services of a worker cannot be retained on probation for more than six months whereas the appointment letter provides probation period nine months and if the probationary services of an employee are terminated after six months the termination will be illegal.³

The Allahabad High Court has held that when the terms and conditions of service in appointment letter are inconsistent with standing orders, the latter will prevail.⁴

EXTENSION OF PROBATION PERIOD

In the light of the conditions which had been specified even in the letter of appointment and in as much as the probation was not extended subsequently, it cannot be said that there is any deemed confirmation in this regard. This view taken by court is in consonance with the Standing Orders of the Management and also the consistent view expressed by the Apex Court in several decisions.⁵

If an employee did not question her first or second extensions, she is not entitled to challenge the consequences of her poor assessment at belated stage at the time of termination of her services on account of unsatisfactory performance. Even if an order of termination simpliciter brings on record some preliminary enquiry regarding allegations against the probationer, that will not vitiate order of termination. The appointing authority is entitled to look into any complaint made in respect of the probationer while making assessment of his performance regarding his confirmation.⁶

CONFIRMATION OF A PROBATIONER

In the absence of rules, if the contract of employment has fixed a particular period of probation and on expiry of the said period, the employee still continues in service, then the implications are that he continues as a probationer. This amounts to an implied extension of the probation period. Otherwise, it is well settled that a probationer continues to be on probation until he is confirmed.⁷ A probationer can be terminated from his services any time before confirmation provided that such termination is not stigmatic.⁸ Confirmation of a probationer will not be deemed till a specific confirmation order is received by him.⁹ Extension of probation period means performance not upto the mark.¹⁰ Even when a person is continuing beyond the probationary period of any order, he does not become a permanent employee.¹¹

Also, in the absence of ceiling about the period of probation, a probationer remains on probation even after period of probation, as held by Delhi High Court.¹² The absence of any provision for extension of the period of probation in the terms and conditions of service, does not necessarily mean that the Government has no powers to extend the period. An employer, has always an implied right to extend the probation period till it is satisfied that the probationer is fit for confirmation.¹³ In another case, a Bench of the Apex Court has held that by continuation in service after expiry of the probation period, a probationer cannot be deemed to be confirmed.¹⁴

The Delhi High Court has also followed the above judgment in holding that there is no right in the probationer to be confirmed merely because he had completed the period of probation.¹⁵

Even when a probationer has crossed the specified period of probation, he will not be deemed to be confirmed and as such his termination after the expiry of the probation period will neither be unjustified nor illegal, particularly when no maximum period of probation has been prescribed.¹⁶

TERMINATION OF A PROBATIONER

It is now well settled principle of law that the appointment made on probation/ad-hoc basis for a specific period of time comes to an end by efflux of time and the person can have no right to continue on the post.¹⁷ Termination of service before expiry of the extended period of probation will neither be stigmatic nor punitive. However, the services of a probationer can be terminated even during the probation period but if it is sought to be terminated on the basis of misconduct, then reasons for unsatisfactory performance are to be recorded.¹⁸ Even if an order of termination of a probationer refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic.¹⁹ The Supreme Court has held that the termination of a probationer on account of unsatisfactory performance can never be treated as ‘penal’.²⁰

In one case, the Gujarat High Court has held that the Industrial Tribunal has rightly rejected the dispute of the probationer alleging violation of the principles of natural justice whereas even during the probation period, his performance remained unsatisfactory.²¹ The Supreme Court has observed if the order of termination indicates that it is a termination simpliciter and does not cast any stigma on the employee, the mere fact that there was an enquiry into his conduct earlier would not, by itself, render the termination invalid.²² The Division Bench of Kerala High Court has held that when there has been sufficient material about the unsatisfactory performance of the petitioner during his probation period and also in the absence of any malafide by the employer, he was justified in terminating his services.²³

Termination of a probationer for unsatisfactory performance cannot be termed as stigmatic or based on Court will not interfere with such findings in the writ.²⁴ As summarily recording, unsatisfactory performance of the probationer during the probation period by the Management will not render the termination of the probationer as illegal.²⁵ Mentioning unsatisfactory work in the order of termination of a probationer, will not amount to stigmatic or invalid.26 Merely that the order of termination of a probationer states that his work is not satisfactory though stigmatic but the termination will not be vitiated and also it will not be violative of the Rules.²⁷

Termination of a probationer by a notice stating that her services were unsatisfactory since she was not a proper performer and lack punctuality would be treated as illegal since it has been stigmatic and no enquiry was held more so when the employee has worked for more than 240 days.²⁸

Termination of probationary services of an employee is not illegal until the termination order is having some stigmatic basis of termination. The words “unsatisfactory performance/work”, “lack of efficiency”, “Unsuitable”, does not ipso facto become stigmatic. While terminating services of a probationer, neither any notice is required to be given to the employee nor any opportunity of hearing until such a stipulation is there in the service contract. Services of a probationer can be terminated at any time before confirmation provided that the same is not stigmatic. Law is well settled that it is the employer who decides whether or not probationary services of an employee are or are not satisfactory for the employer. Court cannot substitute its decision with that of the competent authority/employer that his probationary services are or are not satisfactory.²⁹

Probationary services of an employee can be terminated without assigning any reason. Whether or not a probationary employees’ services are satisfactory or not, it is for the employer to decide and the Court cannot substitute its view for that of the employer.³⁰

Probationary services can be terminated without assigning any reason as held by Delhi High Court.³¹

Non-issuance of formal letter of extension of probation period, mere completion of probation period or completion of probation would not lead to ‘automatic conformation’.³²

LANGUAGE OF THE ORDER OF TERMINATION

In one case, the question arose as to whether language used for termination of probationer will be stigmatic and, if so, whether holding of enquiry by the employer was imperative. On terminating the services of a probationer the language of the order was as under:

On a dispute raised by the employee, in a reference for adjudication, the Labour Court declined to give any relief. The employee filed a writ petition. The Delhi High Court held that the language used by the employer e.g. performance not found upto expectation does not cast any aspersion.³³ Reliance was placed on the judgment of Supreme Court wherein the language used in the termination order has been ‘work and conduct has not been found to be satisfactory’, it safely be held that the impugned order is exfacie not stigmatic.³⁴

Notwithstanding above, it is advisable that while terminating the services of a probationer, the language should be simple, unambiguous and non-stigmatic. It will be appropriate to state :-

“In accordance with the terms and conditions of the appointment letter dated........., the probationary services are terminated with immediate effect or w.e.f………. as the case may be.”

Foot Notes :

1. Parshotam Lal Dhingra vs. UOI, 1958 (1) LLJ 544 (SC) : AIR 1958 SC 36.

2. National Small Industries Corporation Ltd. vs. M. Narayanan, 2005 LLR 967 (Ker. HC).

3. Uttar Pradesh Cooperative Spinning Mills Ltd., Etawah vs. State of Uttar Pradesh, 1978 Lab. IC 1137 (All. HC).

4. R.P. Garg vs. Indian Oil Corporation Ltd., 2007 LLR 247 (All. HC).

5. K. Dasarath vs. Labour Court-I, Andhra Pradesh, Hyderabad and another, 2002 LLR 945 (AP HC).

6. Saraswati vs. Press Trust of India & Anr., 2016 LLR 340 (Del. HC).

7. Express Newspapers (Pvt.) Ltd. vs. Presiding Officer Labour Court, AIR 1964 SC 806 : 1964 (1) LLJ 9.

8. Jaya Raina vs. Gujarat Livelihood Promotion Company Ltd., 2015 LLR 193 (Guj. HC).

9. Hamdard Public School vs. Director of Education, 2013 LLR (SN) 1115 (Del. HC).

10. National Board of Examinations vs. Ms. Rajni Bajaj, 2012 LLR 450 (Del. HC).

11. Motilal Khairati Lal Sharma vs. The Union of India, 1973 (6) Lab. IC 56 (Raj. HC).

12. Sita World Travel (India) Pvt. Ltd. vs. Presiding Officer Labour Court No.4 Delhi & Ors., 1996 LLR 627 (Del. HC).

13. Madan Lal Anand vs. Himachal Pradesh Government and Others, 1971 (4) Lab.IC 277 (Del. HC).

14. Dhanjibhai Ramjibhai vs. State of Gujarat, 1985 (51) FLR 77 (SC).

15. K.C. Mangia vs. Central Warehousing Corporation and Ors., 1987 (55) FLR 67 (Del. HC).

16. Vasant C. Handhad vs. Chairman, Oriental Insurance Co. Ltd., 2004 LLR 372 (Guj. HC).

17. Vidya Vardhaka Sangha and another vs. Y.D. Deshpande and others, 2006 LLR 1233 (SC)

18. Manjit Singh Bawa vs. Food Corporation of India and Ors., 2007 LLR 715 (Cal. HC)

19. Chaitanya Prakash & Anr. vs. H. Omkarappa, 2010 LLR 225 (SC)

20. Paramjit Singh vs. Director, Public Instructions & Ors., 2010 LLR 116 (SC)

21. Vasant C. Hanhad vs. Chairman, Oriental Insurance Co. Ltd., 2004 LLR 372 (Guj. HC).

22. Municipal Committee, Sirsa vs. Munshi Ram, 2005 LLR 317 (SC).

23. The National Small Industries Corpn. Ltd. and Others vs. M. Narayanan, 2005 LLR 967 (Ker. HC).

24. Smita Paul vs. Principal, St. Anthony’s Sr. Sec. School & Anr., 2006 LLR 147 (Del. HC).

25. Manjit Singh Bawa vs. Food Corporation of India and Ors., 2007 LLR 715 (Cal. HC).

26. Pinaki Ghosh vs. International Airport Authority of India & Ors., 2007 LLR 1238 (Del. HC).

27. Miss. Manju Shikdar vs. General Manager (Planning and Development) State Bank of Indore and Ors, 2008 LLR 752 (All. HC).

28. Wika Instruments India Pvt. Ltd., Pune vs. Swati U. Nowgaonkar (Mrs.), Pune, 2016 LLR 209 (Bom. HC)

29. Gurvinder Singh Saini vs. Director of Education and Others, 2017 LLR 130 (Del. HC).

30. St. Thomas School vs. Manish Kaushik & Anr., 2017 LLR 571 (Del. HC)

31. St. Thomas School vs. Manish Kaushik, 2017 LLR 571 (Del. HC).

32. Himanshu Bhatt vs. Indian Railway Catering and Tourism Corporation Ltd. and Ors., 2014 LLR 103 (Del. HC).

33. Davinder Arora vs. Management of Albert and David Ltd. & Anr., 2002 LLR 612 (Del. HC).

34. Pavendra Narain Varma vs. Sanjay Gandhi PGI of Medical Sciences & Anr., 2001 (8) Supreme 409 : 2002 LR 113 (SC).