Jobs on compassionate ground not a right: SC

Written by Indu Bhan | Indu Bhan | Updated: Aug 22 2013, 08:09am hrs
Cure or care

In a major relief to two pharma companies, Ciens Laboratories and Time Pharma, the Supreme Court has held that the product Moisturex is a medicament and not a cosmetic preparation. It said that only 15% excise duty would be payable on Moisturex and not 70% as sought by the revenue authorities. Using a cure or care differentiation to separate medicinal products from cosmetics for the purpose of levy of excise duty, the apex court said that mere fact that a product is sold across the counters and not under a doctors prescription, does not by itself lead to the conclusion that it is not a medicament. It added that courts have to see what the people who actually use the product understand the product to be. If a products primary function is care and not cure, it is not a medicament.

Dismissing the stand of the commissioner of the central excise department that even if cosmetic products, sold over the counter, contain certain subsidiary curative or prophylactic value, they are to be treated as cosmetics only, the top court said: If a product comprises of two or more constituents mixed or compounded together for therapeutic or prophylactic use, the same is to be covered under medicament. The companies being assessed had argued that the product was primarily not being used for care of the skin but for treating or curing dry skin conditions during winters and also for dryness associated with clofazimine-based treatment of leprosy.

Jobs no entitlement

The competent authority must examine the financial condition of the deceased family, and the claimant to a job on compassionate grounds must possess required eligibility for the post, the Supreme Court ruled in the case of MGB Gramin Bank vs Chakrawarti Singh. Setting aside the 2010 judgment of the Rajasthan High Court which held contrary, it said that mere death of a government employee in harness does not entitle the family to claim compassionate employment. It said compassionate employment cannot be claimed as a matter of right, as it is not a vested right and an ameliorating relief should not be taken as opening an alternative mode of recruitment to public employment.

In this case, the bank had challenged the HC judgment which directed the bank to appoint Singh, son of a deceased Class III Bank employee, under compassionate employment. The bank argued that during pendency of Singhs application, a new 2006-scheme came into force that provided for grant of ex-gratia payment to the family instead of compassionate appointment in case of pending applications. The top court allowed Singh to apply under new scheme and asked the bank to consider his case.

Right to pension benefits

Reiterating that gratuity and pension are not bounties but are in the nature of property, the Supreme Court has held that even pending departmental or criminal proceedings cannot deprive a government employee of these hard-earned benefits. The court, in the case of State of Jharkhand & Ors vs. Jitendra Kumar Srivastava & Anr, said that an employee earns these benefits by dint of his long, continuous, faithful and un-blemished service. It is thus hard earned benefit which accrues to an employee and is in the nature of property and this right to property cannot be taken away without the due process of law as per the provisions of Article 300 A of the Constitution of India. It dismissed the Jharkhand governments appeal against the states high court order directing it to release the withheld dues of its retired employee Jitendra Kumar Srivastava, who had criminal cases pending against him. Stating that by a mere executive order the state had no power to withhold Srivastavas pension, the top court said that denying the right to receive pension affects the fundamental right of the employee. According to the court, the payment of pension does not depend upon the discretion of the government but is governed by the rules. It said that the antiquated notion of pension being a bounty or a gratuitous payment depending upon the sweet will or grace of the employer not claimable as a right doesnt hold. It also held that the notion that no right to pension can be enforced through court had been swept under the carpet by its constitution bench decision in the Deoki Nandan Prasad vs State of Bihar case.

indu.bhan@expressindia.com