The writ of Habeus corpus is provided in the constitution in Article 226. The definition of habeus corpus has not been in the constitution but has been interpreted in zillions of different cases in India. The literal meaning of habeus corpus is “you shall have the body”. Mr. Amit Kumar Pandey has not been allowed for this writ as he had not been illegally and unauthorizedly detained provided in the case, Smt. Astha Pandey v. State of Chhattisgarh & Ors.[WPHC/13/2021] through the division bench lead by Mr. Justice Arup Kumar Goswami and Mr. Justice Sanjay K. Agarwal in the High Court of Chhattisgarh.

The facts of case are Shri Amit Kumar Pandey has been produced before this Court though this Court has not directed for his production. The petitioner was seeking directions to the respondents to free her husband from the crutches of respondents stating enter earlier that she has married Shri Amit Kumar Pandey but the respondents have illegally detained him without the authority of law. The petitioner in person had submitted that Shri Amit Kumar Pandey was her legally wedded husband and has been detained unauthorisedly and without authority of law by respondents specifically No. 5 to 7. The petitioner argued that the husband was willing to stay with her and she wanted to continue his treatment as he was unwell. But petitioner wants to stay with him.

Shri Amit Kumar Pandey was present in the court and he submitted that though he was married with the petitioner but due to some objectionable behaviour read by the petitioner he was not ready and willing to stay with the petitioner and wanted to stay with his parents. He clearly stated that he was not willing to meet his wife, the petitioner. He submitted that he is staying with his parents out of his free will and there is no pressure or force applied by the respondent No. 5 to 7 to stay with them as was submitted by the petitioner.

The High Court decided that “We are of the considered opinion that it is not the case where Shri Amit Kumar Pandey has been illegally and unauthorizedly detained by respondents No.5 to 7 and we hereby close the present Habeas Corpus petition accordingly. However, the petitioner is at liberty to avail other remedies available under the law for redressal of her grievances, if any. It is also made clear that we have not expressed any opinion on rights of the parties.”

The court closed the writ petition accordingly.

The decision of the Supreme Court in State of Jammu and Kashmir and others v. District Bar Association, Bandipora that the scheme for regularization framed by the government must be for validating certain irregular appointments and cannot be used to validate illegal appointments and that the court cannot issue direction for regularization without considering the mandate of the Supreme Court and the prevailing rules and regulations on the subject. In the Hon’ble High Court of Jammu & Kashmir and Ladakh led through the single bench by Justice Pankaj Mithal in the matters of State of Jammu and Kashmir & Ors. v. Abdul Majid & Ors.[LPA/22/2019].

The facts of the case are the State of Jammu and Kashmir, the Transport Commissioner and the Regional Transport Officer, Kathua has together preferred this letters patent appeal, holding the petitioners therein entitled to regularization of services in terms of Jammu & Kashmir Civil Services (Special Provisions) Act, 2010 (for short ‘the Act’).

The brief facts which had led to the filing of the writ petition and consequently this appeal are that that the petitioners/respondents were appointed on a temporary basis as orderlies in the Transport Department in the year 1999, some in 2002 and 2003 for a period of 89 days but were allowed to continue even thereafter with an intermittent break of a day or so. After the enforcement of the above Act, as the petitioners/ respondents have completed more than seven years of continuous service and have otherwise fulfilled the essential conditions laid down for regularization therein, they claimed regularization but their claim was rejected on the ground that they were drawing a salary from the contingent fund.

The counsel for the state appellants submits that the court is justified in holding the petitioners to be entitled to regularization as the aforesaid Act was not applicable to them. They were being paid salary out of the ‘Contingent Fund’ and employees drawing a salary from the contingent fund are not entitled to regularization under the Act. Moreover, the petitioners/ respondents were not engaged against any clear vacancy which is a prerequisite for seeking regularization in services. It is also submitted that in view of the Secretary, State of Karnataka and Others v. Umadevi and others, AIR 2006 Supreme Court 1806, no appointment is permissible in law dehors the rules or the process of selection envisaged by the constitutional scheme and as such appointment so made are not required to be regularized.

Learned counsel appearing for the petitioners/respondents submits that the petitioners/ respondents fulfil all the necessary conditions for the regularization of services under the aforesaid Act. The appointment of the petitioners/respondents was against the clear vacancies and as such, they could not have been denied regularization on the aforesaid count. Accordingly, the writ court has rightly quashed the consideration order rejecting the claim of the petitioners/respondents. The aforesaid Act is the outcome of the decision of the Supreme Court in the case of Umadevi (supra) and as such, any regularization within the framework of the aforesaid Act is not illegal or against the constitutional mandate.

The court concluded “The writ court has considered their cases for regularization in the light of the provisions of the Act without impinging upon the mandate of the Apex Court. The petitioners/respondents have been found entitled for regularization of services in accordance with the prevailing rules and regulations.”

The court directed “In view of all that has been said above, we find no illegality in the judgment and order passed by the writ court. The appeal as such is bereft of merits and is dismissed with no order as to costs.”

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Judgement reviewed by Pranav Vyas.

In respect of the issue of mortgaged property and restoration of possession, it was found that the dispute was of civil nature between the private parties. Such an opinion was held by The Hon’ble High Court of Calcutta before The Hon’ble Mr. Chief Justice Prakash Shrivastava and The Hon’ble Mr. Justice Rajarshi Bharadwaj in the matter of Dinesh Agarwal Vs. State of West Bengal & Ors [MAT 863 of 2021 With IA CAN 1 2021].

The Writ petitioner questioned the correctness of the order passed by the Single Judge on 14.07.2021. It was found by the Single Judge that the dispute raised by the appellant was of civil nature. According to the submissions by the appellant, the police failed to justify the civil dispute and wrongly handed over the possession of the premises and goods kept therein to the private respondent. The counsel representing the respondents opposed the prayer and submitted that based upon factual controversy the appellant tries to set up the entire story and approached the required forum and establish it by way of evidence. It was reported that the official respondents had denied the plea of forcible dispossession by filing an affidavit in opposition and disclosing that 4 women including 2 senior citizens were locked in the premises in question and on receiving an intimation they were rescued. 

The Hon’ble Court considering all the facts stated that “The perusal of the order passed by the learned Single Judge reveals that the issues raised by the appellant have been duly considered and appropriate conclusions have been drawn. In this view of the matter, we do not find any informity or illegality in the order of the learned Single Judge. Hence, no case is made out to interfere in the order of the learned Single Judge. The appeal is found to be devoid of any merit which is accordingly dismissed.”

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Judgment reviewed by Bipasha Kundu