0

Retrospective effect not applicable when a government resolution is passed after invalidation of constitutionality of the SEBC Act : Bombay HC on SEBC students applying in the category of EWS

Blog , , , ,

TITLE : Akshay Ashok Chaudhari v Government of Maharashtra

CORAM : Hon’ble Justice Nitin Jamdar and Hon’ble Justice Manjusha Deshpande

DATE :  22nd  December, 2023

CITATION : WP NO 2722 of 2023

FACTS

The Maharashtra State Reservation For Socially And Educationally Backward Class Act, 2018 was challenged for its constitutionality in the hon’ble court and was later challenged in SC which held it unconstitutional. The Act conferred a right on the individuals from the Maratha community, SEBC category, to 13% of total admissions in educational institutions and 16% of total appointments in direct recruitment for public services and posts within the State. After the interim order passed by the SC, the government of Maharashtra issued government resolution for the candidate who applied under SEBC category for public examination and were told to appear in the category of EWS (economically weaker section). This was challenged by the EWS category candidates and the tribunal upheld the challenge and disqualified those who appeared under SEBC category. The same is challenged in this hon’ble court by the SEBC candidates.

LAWS INVOLVED

Article 16(6) of the Constitution of India states that :

Equality of opportunity in matters of public employment.-

(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

[(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category

ISSUES

Whether the tribunal erred in holding the position that SEBC candidates cannot apply in the category of EWS as per the Government Resolution

JUDGEMENT

The contentions of the petitioners were that the tribunal erred in holding the position that the GR was applied retrospectively. The respondents claimed that In the Advertisements pertaining to the recruitment processes, the vacancies for SEBC and EWS were notified separately, and even the procedures prescribed for procuring the certificates under the said categories were different and distinct under the various GRs.

The court held that the advertisements mentioned the specified number of posts allotted as  per the reservation and any changes would be communicated. The Advertisements inherently acknowledged that the reserved posts were not fixed and that any alterations would be duly notified. Further it held that applying the principle of retrospectivity requires consideration of the fact that GRs were issued under the executive power of the State to address perceived injustices for a specific class. The retrospective effect reasoning given by the tribunal was set aside by the court.

Subsequently, the tribunal’s order was set aside and the petition was allowed.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Sanjana Ravichandran

Click here to view judgement

0

The Madras High Court denies the request for reservation in the appointment of Law Officers, emphasizing that the paramount factor should be merit alone.

Blog, blog

Case Title: Thol Thirumaavalan v The Principal Secretary

Case No: W.P.No.14582 of 2017

Decided on: 07th December, 2023

CORAM: THE HON’BLE MR. SANJAY V. GANGAPURWALA, CHIEF JUSTICE

AND THE HON’BLE MR. JUSTICE D. BHARATHA CHAKRAVARTHY

 Facts of the Case

The President of Viduthalai Cchirutthagal Katchi (VCK), Thol Thirumaavalavan, filed a case asking the court to overturn the Government Order concerning the appointment of Law Officers to the Madras High Court and its Madurai bench. He aimed to formulate new regulations that would guarantee openness, sufficient representation for women, scheduled caste, scheduled tribe, and minority rights. Thirumaavalavan said that the 1968 Office Memorandum was broken by the Appointment of Law Officers of High Court of Madras and its Bench at Madurai (Appointment) Rules, 2017, which excluded scheduled caste and scheduled tribe from being reserved in temporary appointments longer than 45 days.

He emphasized the need for fairness and transparency to uplift marginalized and oppressed people as he continued to protest the appointment process’ lack of transparency. The respondents retorted that the position of Law Officer was not a civil service job and that the people selected were not state workers but rather professionals hired for particular assignments according to their areas of competence. The State argued against reservation in some positions and services by citing the ruling in Indra Sawney v. Union of India, a case decided by the Supreme Court. According to established legal precedent, the State argued that the appointments were in compliance with the 2017 Rules, highlighting the professional nature of the job and the unwiseness of implementing reservation in such positions.

Legal Provisions

The case revolves around the challenge to the Madurai (Appointment) Rules, 2017, which govern the appointment of Law Officers to the High Court of Madras and its Bench in Madurai.

 Issues

Is the provision of vertical and/or horizontal reservation deemed necessary for the appointment of Law Officers by the government, considering that the established procedure is explicitly defined, and does the laid-down procedure exhibit any characteristics of arbitrariness or lack of transparency?

 Courts analysis and decision

While rejecting the appeals, the court said that government-appointed law officers do not hold civil posts and are not regarded as government workers. The court emphasised the professional nature of the relationship between the government and Law Officers by stating that the government must choose the most qualified, talented, and deserving attorneys for the job. The court emphasised that the government must choose Law Officers in a way that protects the public interest and that it must choose the most qualified candidates on the basis of merit. The court emphasised that Law Officers are not employees or servants of the government, stating that the relationship between the government and Law Officers is solely professional and not that of a master and servant. The court determined that Article 16(4) of the Constitution and the reservation policy do not apply to the appointment of Law Officers because it is a government decision and not a tenure appointment. As a result, the court held that there should be no provisions for vertical or horizontal reservation and that law officers should be appointed to the High Court and its Madurai Bench only on the basis of merit. The established process for these appointments is open and non-arbitrary, the court stressed.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Rupika Goundla

Click here to view judgement

0

The Madras High Court emphasizes that a UAPA offense does not automatically result from the act of threatening individuals by asserting an association with ISIS terrorists.

Blog, blog

Case Title: Mohamed Irfan v Union of India

Case No: Criminal Appeal No.340 of 2023

Decided on: 09th November, 2023

CORAM: THE HON’BLE MR. JUSTICE S.S. SUNDAR And THE HON’BLE MR. JUSTICE SUNDER MOHAN

 Facts of the Case

After being discovered in a car that the police had stopped on suspicion of having guns and other weapons, Mohamed Irfan filed an appeal contesting the rejection of bail. After taking over the investigation, the National Investigation Agency (NIA) registered offences under the Arms Act and the Indian Penal Code and obtained government approval to prosecute for offences under the Unlawful Activities (Prevention) Act (UAPA). According to the final report, Irfan and the prime accused were involved in anti-national activities while posing as Intellectual Students of India (ISI) and the Khilafah Party of India. The appellant was charged with supporting these organizations and taking part in talks on ISIS doctrines with the intention of establishing Islamic rule in India through a legal coup of the government.

Irfan, who identified himself as a meat vendor, said that his association with the lead accused was the only one and that the UAPA allegations were based on assumptions. On the other hand, the prosecution contended that witness statements demonstrated Irfan’s threats against individuals, claiming that both the principal accused, and his boss were terrorists affiliated with ISIS. Irfan allegedly made threats to murder a witness and asserted that he was involved in illicit financial transactions with the principal accused. The prosecution argued that Irfan should not be granted bail because of these actions.

Legal Provisions

The legal proceedings in this case are anchored in the Unlawful Activities (Prevention) Act (UAPA), a legislative instrument designed to prevent and penalize unlawful activities, particularly those associated with terrorism and threats to national security.

Issues

In the legal interpretation of UAPA, is the specific act of threatening individuals while asserting an affiliation with ISIS terrorists sufficient to constitute an offense under the said legislation?

In the charges related to the Khilafah Party of India and ISI, is there a legal distinction between mere association with the prime accused and direct involvement with the alleged terrorist organization, as asserted by Mohamed Irfan in his defense?

Courts analysis and decision

The Court pointed out that, even if they are illegal, mere threats of affiliation with an ISIS terrorist do not always translate into a violation of Section 39 of the UAPA. The court emphasised that handling finances for the primary accused did not always imply a desire to support the terrorist organisation, and that the prosecution must demonstrate support for a terrorist organisation by independent evidence.

The court emphasised that bail should be granted based on reasons rather than a mere request and that the restrictions under Section 43D of the UAPA do not infringe upon fundamental human or constitutional rights. It also emphasised the need for a clear outline of the alleged terrorist act in cases involving conspiracy under the UAPA. The court granted release with specific conditions, stressing the need to avoid indefinite pre-trial imprisonment, given the paucity of evidence demonstrating the intention to support a terrorist organisation and the possibility of a lengthy trial.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Rupika Goundla

Click here to view judgement

0

Amendments in Pleading can be allowed at the any stage of the case but there are certain conditions to be fulfilled – High court of Patna

#patna High court, Blog, blog

Amendments in Pleading can be allowed at the any stage of the case but there are certain conditions to be fulfilled – High court of Patna

TITLE-Abdush Shakur Vs Ganga Prasad Thakur

Decided on-18/12/2023

+C.Misc 674/2017

CORAM-HON’BLE JUSTICE ARUN KUMAR JHA

FACT

As the petition has been filed by the petitioner against the order passed by the learned Munsiff in title suit by which the learned court below rejected the amendment petition filed by the petitioner on 11/08/2016.As the petitioner filed before the learned Munsiff seeking relief of direction to the defendant/ Respondent to hand over the original registration receipt and the original sale deed for the suit land which the plaintiff agreed to purchase for consideration amount Rs 14000/ from the defendant.The plaintiff paid Rs 6000/ before the registration of the sale Deed and rest amount was to paid later on.The Registration of sale-deed was made on 10/08/1998 and thereafter the plaintiff paid 8000 to the defendant and asked for original registration receipt but defendant said it got misplaced.Then plaintiff called for a Panchayati and panchas decided to give RS 1000/ more to the defendant but still the defendant did not handover the original receipt to the plaintiff but defendant appears and contested the claim of the plaintiff but defendant refused the sale price of the suit land Rs 14000/ and claimed Rs 30000/ against which Rs 6000 was paid.The panchas decided to return Rs 6000 to the plaintiff with direction to execute the deed if cancellation Sale- Deed dated 10/08/1998.Where the defendant refund the amount to the petitioner and cancelled the deed in 10/01/2000.

Law Involved/Legal Provisions

For the amendment of the petition order 7 Rule 17 .

Issue framed

Whether the order passed by the learned Munsiff by Dismissing the amendment petition is valid?

THE COURT ANALYSIS AND DECISION

As per the Hon’ble court after hearing both the parties observed and state that the first amendment sought to be brought on record is regarding declaration of a document which was of the year 2000. It is circumventing the limitations through back doors.Amendments in pleading can be allowed at any stage but there are certain conditions.As aforementioned and circumstances the court do not find any merit in the instant petition and accordingly the petition is dismissed.

PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Prachee 

Click here to view the full judgement

0

The High court Of Patna quashed the order passed by the learned trial court under section 302/34,120B &307/34 of IPC and section 27 of Arms Act as Prosecution failed to proof the case 

#patna High court, Blog, blog

The High court Of Patna quashed the order passed by the learned trial court under section 302/34,120B &307/34 of IPC and section 27 of Arms Act as Prosecution failed to proof the case 

TITLE-Ram Bachan Singh vs The State of Bihar with Munna Singh vs The State of Bihar

Decided on-18/12/2023

+CR.APP(DB)No.261/2017

CORAM-Hon’ble justice Mr.Vipul M.PANCHOLI and Hon’ble Justice Mr.Rudra Prakash Mishra.

FACT

As per the facts of the case As the present appeal is been filed by the appellant challenging the order of conviction and order of sentence passed by the learned Sessions Judge, Begusarai were the trail court has convicted the appellant for the offences punishable under 302/34,120B and 307/34 of IPC as well as section 27 of the Arm Act and other convicted under section 302/34,120B of IPC and Section 27 of the Arm Act.As from the Prosecution side the informant Ram Vinay Singh were he state that on 29/06/2012 The baraat was coming to Hadipur by City ride bus were his son in law Mukesh Singh,son of Ram Pravesh Singh and six other people were travelling.As soon as the bus reached near the tree of Pakar at Village Maheshpur Mor, the bus stoped and Appellant Sonu Kumar Singh and Manoj Singh and started to firs with the country made pistol and due to firing his son in law Mukesh Singh got shot in the chest on both the sides, elbow of left arms and below the lips and forehead due to which he died on the bus as after his death he wanted to get down from the bus but Rambachan Singh, Munna Singh, Balram Singh and Chhotu Singh were standing outside the bus,started firing.The said incident happened around 12:30 p.m as the reason behind the shooting was that his son in law of the informant had a conflict with the accused persons and around 3 years back he had filed a case. A formal FIR came to be registered and IO started the investigation and during the course of the investigation he had recorded the statement of the witnesses The deceased body went for the post mortem and thereafter filed the charge-sheet against the accused before the concerned Magistrate court,The case was exclusive triable by the court of Sessions the learned Magistrate committed the same to the concerned Sessions court.During the course of the trial the Prosecution examined witnesses.After conclusion of the trial,The Trial Court passed the impunged order against which three different convicts have filed three different appeals.

Law Involved/Legal Provisions

All the present appeals have been filed under Section 374(2) of the code of criminal procedure,1973 challenging the order of conviction and sentence passed by learned Sessions Judge, Begusarai convicted under section 302/34,120B and 307/34 of the IPC as well as section 27 of the Arms Act 

ISSUE FRAMED 

Whether the order passed by the learned Trial Court is valid ?

THE COURT ANALYSIS AND DECISION

As per the Hon’ble court after hearing both the parties observed and aforesaid evidence it would emerge that the Prosecution has projected to witness as an eye witness .and there are major contradictions in the deposition of the informant and totally a new story has been deposed by him before this court.Thus the court are in the view that so called eye witness are projected as chance witnesses and their deposition cannot be relied as there are major contradictions and inconsistencies.As pertinent to note that though the informant has specifically stated that there were six other passengers in the bus none of them have been examined by the Prosecution.Further from the medical evidence it is revealed that the death of Mukesh Kumar Singh was caused before 6 hours from the time of conducting the postmortem and the theory put by the Prosecution is not supported by the medical evidence.From the aforesaid discussion the Prosecution has failed to prove the case against the appellant/accused beyond reasonable doubt despite which the trail court has passed the impunged order is required to be quashed and set aside.All these appeals are accordingly allowed.

PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Prachee 

Click here to view the full judgement

1 … 177 178 179 180 181 … 1,851