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Judicial officers in subordinate service cannot stake claim of “past experience” as advocate for being promoted to direct recruitment from the Bar as a District Judge: Patna High Court

When the law is clear from the beginning, the petitioner cannot be allowed to stake claim of being appointed as a District Judge from the stream of advocate and it has to be confined to those advocates who continue to be an advocate all through and also at the time of his appointment. This was said in the case of Sunil Kumar Verma vs The State Of Bihar [CIVIL WRIT No.8306 of 2020] by Justice Shivaji Pandey and Justice Partha Sarthy in High Court of Judicature at Patna.

The facts of the case are the petitioner before joining the subordinate service i.e. on cut-off date, filled up the form, had mentioned the experience of 7 years but, thereafter, he was selected in the Uttar Pradesh Judicial Service, he joined and continued to remain in service. At the same time, he appeared in the examination against the advertisement published for direct recruitment from the Bar as a District Judge in which he was finally selected but, on the date of result, he was in judicial service of the State of Uttar Pradesh. Later he got posted at Begusarai. A show cause letter was issued to him stating that wasn’t a practicing advocate on test dates therefore he was ineligible to be appointed as ASJ.

The petitioner contends that the Constitutional scheme is to be construed in the manner the requisite qualification is co-relative to cut-off date and would not be interpreted in such manner that the person to be remained all through an advocate till the date of his appointment rather only prescription has been provided that a person who is an advocate for 7 years on the cut-off date has been made eligible for consideration for the post. On the other hand, the counsel appearing on behalf of the High Court contended that a person must have 7 years of experience not only on the cut off date but he will remain as such on the date of  examination as well as on the date when he has been appointed .

For the interpretation of Article 233, the Court referred to multitude of cases one of them being, Satya Narayan Singh Vs. High Court of Judicature at Allahabad [(1985) 1 SCC 225] where SC said that “Article 233(2) demarcates two source of recruitment in the District Judge level, one from the person in the judicial service and another from the person who is an advocate having 7 years of qualification, as because they have acquired before joining the State Judicial Service cannot claim recruitment under the different source meant for the advocate”.

The Court also referred to the case of Dheeraj Mor v High Court of Delhi [CIVIL APPEAL No. 1698 of 2020] where SC has made it specifically the entitlement for being appointed as a District Judge in direct quota and postulates that he must be an advocate not only on the cut-off date but also at the time of appointment.

The Court after closely analyzing the facts of the present case in the background of the ratio laid in the above case, dismissed the writ application.

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Lack of knowledge of legal principles leads to miscarriage of justice and unnecessary harassment to the parties to the litigation: Patna High Court

A trial judge, having the power to award a death sentence, must have correct knowledge of legal principles and zeal while exercising the most onerous responsibility of taking decision on the life and liberty of person. This was said in the case of Deepak Mahto v State of Bihar [CRIMINAL APPEAL No. 2932 of 2019] by Justice Birendra Kumar in High Court of Judicature at Patna.

The facts of the case are that the Trial judge convicted and sentenced the appellant for an offence under Section 18 of the POCSO Act because the Judge was of the view that this was a case of attempt to commit penetrative sexual assault. An appeal was filed on the grounds that the commission of offence wasn’t proved against the appellant beyond reasonable doubts in the trial Court.

The appellant contended it is a case of “no evidence” since none of the prosecution witnesses produced have supported any allegation against the appellant. Secondly, they contended that the learned trial Judge misunderstood the legal principles and relied upon the statement recorded under Section 154 Cr.P.C. as well as under Section 164 Cr.P.C. for coming to the conclusion that the prosecution has proved the charge against the appellant beyond reasonable doubt.

On the other hand, the State contends that a victim of rape hesitates in disclosing what has happened against her openly at each and every opportunity faced by her and the statement of the prosecutrix would reveal that she has supported her earlier statement given before the police or before the Magistrate. Therefore, she is wholly a reliable witness and corroboration is not the requirement of law. Hence, the judgment of conviction requires no interference.

The court referred to the judgment laid down in R. Shaji v. State of Kerala [(2013)14 SCC 266], where the Supreme Court said that “a proposition to the effect that if statement of a witness is recorded under Section 164 Cr.P.C., his evidence in Court should be discarded, is not at all warranted. As the defence had no opportunity to cross-examine the witness whose statement was recorded under Section 164 Cr.P.C. or under Section 161 Cr.P.C such statements cannot be treated as substantive evidence”.

After closely analyzing the facts of the present case in the background of the ratio laid in the above case, the Court observed that “the trial Court has accepted, the conflicting prosecution case as disclosed in the statement of the prosecutrix under Section 154 Cr.P.C. and under Section 164 Cr.P.C. for recording conviction without appreciating the fact that the aforesaid are not substantive piece of evidences and the evidence brought during trial does not disclose commission of any offence or identity of the perpetrator of the offence. Hence the Court opined that the impugned judgment suffers from non application of the correct principle of law while appreciating the evidence during a criminal trial.

Furthermore, the court said that “Bias and prejudice conjectures and surmises and personal views contrary to the material on the record have no place in the court of law” Hence the impugned judgment was set aside and this appeal was allowed.

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mumbai high court

DGFT is required to act in good governance as a facilitator for exports and imports: Bombay High Court

While allowing a writ petition, the HC asserted that statutory authorities are required to function responsibly since the focus is on good governance, which depends on efficient, transparent, and accountable delivery systems. In order to facilitate international trade, DGFT consults various Export Promotion Councils as well as Trade and Industry bodies from time to time. Thus, the DGFT is required to act as a facilitator in favour of good governance. This remarkable judgment was recently passed by Bombay High Court in the matter of Rika Global Impex Limited V Union of India and Ors. [WRIT PETITION (ST) NO.96678 OF 2020] by Honourable Justice Milind N. Jadhav and Justice Ujjal Bhuyan.

Through this writ petition, the petitioner prayed for a writ of mandamus against Commissioner of Customs and Assistant Commissioner of Customs, Appraising Group – I & IA to allow clearance of 2,650 MTs of Pigeon Peas covered under numerous Bill of Entry for home consumption which have been held up in spite of having a valid registration of Advance Payment Certificate which was issued by the Director-General of Foreign Trade permitting the import of Pigeon Peas under the Foreign Trade Policy 2015-2020

The facts of the case are, Petitioner, a company, is a regular importer and exporter of agricultural produce including Pigeon Peas from Sudan, Myanmar, Tanzania, and Mozambique. DGFT amended the import policy of certain items and import of Pigeon Peas was revised from ‘free’ to ‘restricted’ category, initially, the petitioner was provided an expansion and approval, however, after he executed 13 more bills of entry, they were not granted approval in spite of compliance with the rules.

The total quantity of Pigeon Peas under the 13 bills of entry is 2650 MT clearance of which is the subject matter of the present writ petition. Thereafter petitioner requested the Deputy Commissioner of Customs (Import) to permit the petitioner to convert the bills of entry from home consumption to warehousing so as to enable the petitioner to transfer the goods to the actual warehouse who was the license holder in order to stop further losses being suffered due to non-clearance of the goods and due to its perishable nature. Being aggrieved by the non-clearance of the shipment of approximately 2650 MT of Pigeon Peas imported under the 13 bills of entry, the petitioner has approached this Court by the present petition.

The Court stated, “Contention of the respondents that under para 1.05(b) petitioner has not registered with the jurisdictional RA due to change in the policy of import of Pigeon Peas from free to a restricted category cannot apply to the petitioner’s case as the petitioner’s contract was based on advance payment to the supplier and not on the basis of ICLC (Irrevocable Commercial Letter of Credit). Hence this submission of the respondents cannot be accepted.

The Court observed that “DGFT has considered the addendums while issuing the RC. In any case, by these addendums, terms of the contract are not substituted or changed, only the period of shipment is extended. In case of any material change in terms of a contract, the petitioner would have applied to the concerned ministry for seeking amendment. So, the RC is binding on the respondents until the completion of the import quota mentioned therein.

Thus, the Court opined that “it is clearly discernible that petitioner’s import of 22000 MTs of Pigeon Peas under the RCs issued to the petitioner is valid up to 31.03.2021 and the case of the respondents that the same is restricted only to the fiscal year 2017-18 is clearly untenable.”

Hence, the Court allowed the writ petition and directed clearance of 2650 MT of Pigeon Peas covered under Bill of Entry and also clearance of the balance 8350 MT of Pigeon Peas for home consumption for a period of 6 weeks from the date of passing of the present order.

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The probationer is allowed to continue his work only, if there is vacancy and the work is found to be satisfactory: Madhya Pradesh High Court

If the probationer is able to resume after the two-year duration has expired, automatic certification cannot be asserted as a matter of right because, according to the Rules, the confirmation request will be passed only if there is a vacancy and the job is considered to be acceptable, such are the prerequisites or preconditions for confirmation. The judgment was passed by The High of Court Madhya Pradesh in the case of Sinnam Singh vs. State of MP and Ors. [WRIT PETITION 21814 of 2018] by a Single bench consisting of Hon’ble Shri Justice Gurpal Singh Ahluwalia.

The facts of the case are the petitioner was appointed on probation of two years. One of the conditions of the appointment order was that in the light of Rule 12 of the Madhya Pradesh Government Servants the services of the petitioner can be discontinued by giving one month’s notice or one month’s advance salary. He remained absent from his duties and did not submit his joining thereafter, petitioner under Article 226 of the Constitution of India has filed a petition thereby putting the services of the petitioner to an end under Regulation 59 of the Madhya Pradesh Police Regulations.

The learned Counsel for the petitioner argued that since the father of the petitioner was of old age and had fallen sick which was in the knowledge of the Department, yet the services of the petitioner were put to an end. It is further submitted that the original period of probation was for two years and according to Regulation 59 of Madhya Pradesh Police Regulations, the period of probation can be extended by a further period of six months two times. Therefore, it has to be presumed that the petitioner was confirmed in the service and accordingly, his services could not have been terminated without holding a Departmental Enquiry.

The learned Counsel for the respondent submitted that in the impugned order, were assigned for no reason, therefore, it was a discontinuation simpliciter without any allegation/stigma. Only in the memo of appeal, as the petitioner had raised a question of absence of reasons, therefore, in order to consider the grounds raised in the appeal, the Appellate Authority has considered the previous conduct of the petitioner, which cannot be said to be stigmatic in nature. It is further submitted that there is no provision of law that provides that if the order of extension of probation is not passed after completion of the probation period, then an employee shall be treated to be confirmed in the service

The court relied on the judgment of The Supreme Court in the case of Registrar, High Court of Gujarat vs. C.G. Sharma, “it was  held that even if the period of two years of probation expires and the probationer is allowed to continue after a period of two years, automatic confirmation cannot be claimed as a matter of right because, in terms of the Rules, the confirmation order can be passed only if there is a vacancy and the work is found to be satisfactory, which are the prerequisites or preconditions for confirmation.”

While allowing the petition the court directed that “the petitioner shall be entitled to one month’s salary in lieu of one month’s notice. They shall be entitled to one month’s salary in lieu of one month’s notice as provided under Rule 12 (b) of the Rules, 1960. Let one month’s salary be paid to the petitioner within a period of three months from today.”

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Callous attitude of wife amounts to cruelty and cannot be regarded as trivial matters: Bombay High Court

The principal question which requires consideration is whether from the evidence on record, can it be inferred that the spouse has committed an act of cruelty and whether the marriage is required to be dissolved on the aforesaid ground. This remarkable judgment was passed by the Bombay High Court in the matter of SUNESH SUDHAKAR RELEV SEEMA SUNESH RELE [FAMILY COURT APPEAL NO. 106 OF 2012] by Honourable Justice R. D. Dhanuka and Justice V. G. Bisht.

The husband has filed this Family Court Appeal against the Judgment and Order passed by the Family Court whereby a Petition seeking divorce on the ground of cruelty under Section 27(d) of the Special Marriage Act, 1954 had been dismissed.

After marriage, the wife informed him that she did not marry willingly instead was forced by her father and that she now wants to divorce. Later the wife started cruel and rude behaviour with the husband and his parents and abuse the elderly parents for petty issues and threaten to beat them on several occasions. The husband continued to tolerate this behavior but after two months of marriage, she left the matrimonial home only to return after ten days with an intention of divorce and refused any physical relations and ridiculed his physical appearance. Later, she took all her ornaments and left and even sent a legal notice and claimed pregnancy even though she was not pregnant and had no signs of any pregnancy when she left the matrimonial home.

Thus, he instituted a Petition for divorce on the ground of cruelty, the wife denied these allegations and instead contended that they were demanding dowry and after it was not paid, they are trying to sully her character and also alleged that due to harassment and mental torture by the appellant she suffered a miscarriage. After recording the evidence, the learned Judge came to the conclusion that the appellant has failed to prove that the wife treated him with cruelty and accordingly dismissed the Petition of divorce. Later in front of the HC, it was claimed that the wife demanded a sum of Rs.10 lakhs for giving divorce, and since the court failed to appreciate the evidence the judgment should be set aside,

The HC observed that “Instances firmly established on record were neither controverted nor assailed nor even remotely touched in the cross-examination. Simply, the version of husband in consonance and confluence with pleadings have gone unchallenged in the cross-examination without being tested with any sincerity and vigorously by the wife.

The Court also stated that “Relation between them was not marred by ordinary wear and tear of matrimonial life. Wife’s bursting out at regular intervals as to tying of nuptial knot against her wish, having an affair with other boy and her leading adulterous and a life of sexual debauchery, by all means, can be termed as marital misconduct constituting mental cruelty to the husband, to say the least.”

The Court acknowledged that “perpetual nagging was certainly and completely intolerable” and lead to a situation wherein the husband’s life became miserable because of rude and cruel behavior of the wife as it endangered his mental peace because of infliction of abusive words.

The Bench stated that “The circumstances could not be considered as conducive to congenial married life. The callous attitude of respondent-wife on this behalf certainly amounts to cruelty. The incident so noted cannot be by any stretch of imagination be regarded as trivial matters in the day-to-day married life and rather were very serious.”

The Court in regards to abortion and miscarriage stated that the finding of the trial Judge was that the pregnancy was either aborted or terminated with the knowledge or consent of the husband but the husband was not informed about the pregnancy let alone the vent of miscarriage or abortion.

The Court regarded that the Trial Judge failed to appreciate the intact testimony of the husband and stated that, “It is a case of virtual no cross-examination of various instances as deposed to by appellant-husband in his substantive evidence. In a sense, the learned trial Judge recorded perverse findings which are not consistent with the evidence on record. Therefore, the findings so arrived at by learned trial Judge is not sustainable.”

Thus, the judgment of the Family Court was quashed and set aside and the decree of divorce was allowed under Section 27(1)(d) of the Special Marriage Act, 1954.

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