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hc patna

Petitioner’s Candidature Was Not Rejected At Its Inception And Despite Her Failure To Produce The Certificate Is Sufficient Compliance Of Guidelines: High Court Of Patna

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Citation: L.P.A No.1414 of 2018

Coram: Honourable Chief Justice And Honourable Mr. Justice Rajiv Roy

Decided On: 03-10-2023

Introduction:

The present appeal is filed against an order in a review, which rejected the same finding the scope of review to be very limited and the invocation of such review jurisdiction possible only on the ground of an error apparent/evident from the face of the record.

Facts:

On 02.04.2018, a writ petition was filed by the petitioner against the rejection of her candidature to the post to Lady Supervisor, which was dismissed. The rejection of her candidature was on account of her not having produced the Non-Creamy Layer Certificate, which she was obliged to produce along with application.

The learned Single Judge found that though it was not produced along with application, she was called for counselling on 14.05.2012, on which date also she had not produced it. The petitioner’s reliance on the guidelines, which speak of an opportunity to submit the required certificate, having not been granted to her was also rejected on the ground that the advertisement clearly spelt out the requirement to produce the certificates along with application.

The advertisement was made for appointment on contractual basis to the post of Lady Supervisor (Mahila Parveyashika) in Katihar district. Even according to the petitioner, the advertisement required that the application should contain the self-attested photograph, the Extremely Backward Class certificate along with the certificate of not coming under creamy layer. Admittedly, the petitioner did not produce the certificate along with the application. In the writ petition also the petitioner had a contention that if her application was defective, she should have been informed.

Court’s Analysis and Judgement:

Petitioner’s candidature was not rejected at its inception and despite her failure to produce the certificate, she was called for the counselling. This was sufficient compliance of the guidelines. The advertisement clearly required the applicants to produce the certificates and the self-attested photograph long with the application itself. If any of the enclosures required are not produced, the application could be rejected in limine, which was not done.

It also have to be noticed that the certificate was issued only on 14.05.2012, on which date the counselling was also carried out. Hence, the petitioner’s contention that the certificate was produced at the time of counselling also cannot be believed. Hence the appeal was dismissed by the court.

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Written by- Sushant Kumar Sharma

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If Document Has Not Been Provided Either By The Inquiry Officer Or By The Disciplinary Authority Failure Will Fall On The Disciplinary Committee: Patna High Court

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Citation: CWJC No.1118 of 2020

Coram: Honourable Mr. Justice Dr. Anshuman

Decided On: 02-11-2023

Introduction:

The present writ petition has been filed for setting aside the order contained in Memo No.3839 dated 30.04.2019 passed by respondent, by which minor punishment has been inflicted upon the petitioner relating to (i) Censor and (ii) reduction to the lowest stage in the time scale of pay for a period of two years without cumulative effect. The further prayer made in the present writ petition is also for setting aside the appellate order contained in Memo No.3405 dated 19.09.2019 issued by respondent by which the original punishment order dated 30.04.2019 has been affirmed.

Facts:

The petitioner was appointed as Co-operative Extension Officer and submitted his joining on 08.11.1989 being his first posting at Motihari. During the relevant period in the year 2010 he was posted as Block Development Officer and his services was deputed to the Rural Development Department. when he was posted at Naubatpur then a show-cause notice was issued vide letter No.8119 dated 23.09.2016 by respondent and he was directed to file a show cause against the charges framed by the District Magistrate. In compliance of the said letter, the petitioner has filed his show cause on 03.10.2016 denying the charges and a categorical pleading has been taken by him that inquiry was conducted by District Statistics Officer behind his back and he has denied all the charges alleged against him.

The petitioner further submits that disciplinary authority has issued an order contained in Memo No.9338 dated 09.11.2016, by which it was decided to conduct the disciplinary proceeding against him under the CCA Rules, 2005. It was categorical direction of the disciplinary authority that inquiry officer has to conduct the inquiry and submit a report under Rule 17(23) of the C.C.A. Rules, 2005. Petitioner further submits that in the light of the said Memo No.9338 dated 09.11.2016, the proceeding has to be initiated in accordance with law as laid down in the C.C.A. Rules, 2005, but in complete violation of the said Rule punishment order was passed and communicated to him vide Memo No.3839 dated 30.04.2019.

Rules, 2005, which is subject to the provisions of Rule 18(3) of the C.C.A. Rules, 2005, then in that case all procedure applicable to the major penalty has to be followed. But here in the present case no such procedure has been followed and, hence, the entire departmental proceeding as well as its finding are bad-in-law. Counsel of the State He submits that there is a categorical finding of the disciplinary authority that the delinquent has accepted that irregularity has taken place in the distribution of diesel. But he has thrown responsibility on the deficiency of Supervisor and requested that the Panchayat Secretary should be held guilty.

Counsel also submits that the delinquent had also tried to delay this matter on the ground of non-production of the demanded documents, but the said documents/evidences can be obtained under R.T.I. immediately and due to these two reasons the disciplinary authority holds the charges to be true and correct and had imposed punishment.

Court’s Analysis and Judgement:

If document has not been provided either by the inquiry officer or by the disciplinary authority even upon repeated demand, in that case the delinquent is supposed to obtain under R.T.I. is also not correct position of law. The C.C.A. Rules, 2005 is very clear on this point that it is the duty of the disciplinary authority to provide all the documents, which is going to be proved or which is the base of the charge to the delinquent as per Rule 17(3) of C.C.A. Rules, 2005. In absence of those documents even after repeated demand, the fault shall be of the disciplinary authority or inquiry officer. Hence the court decided that the order passed by the disciplinary authority as well as the appellate authority have to be set aside.

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Written by- Sushant Kumar Sharma

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“Estoppel Denied: Court Upholds Ineligibility Criteria, Dismisses Writ Petition for District Judge Post”

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Title: Trupti Mayee Patra vs. Registrar, Examination, Orissa High Court

Citation: W.P.(C) No. 35020 Of 2023

Coram: MR. JUSTICE D.DASH, MR. JUSTICE G. SATAPATHY

Decided on: 3-11-23

Introduction:

This case involves a writ petition presented through a hybrid arrangement (virtual/physical) mode. The petitioner seeks the extraordinary jurisdiction of the court under Articles 226 and 227 of the Constitution of India. The primary relief sought is a direction to the Opposite Party to include the petitioner in the list of eligible candidates for participating in the recruitment examination for the position of District Judge from the Bar, 2023. The specific demand is for the issuance of a fresh list to address the petitioner’s inclusion in the said examination

Facts:

The petitioner, initially enrolled as an advocate with the Orissa State Bar Council, practiced from 2004 to 2014. Subsequently, she joined as a Junior Clerk in the office of District & Sessions Judge, Malkangiri, surrendered her license in 2016, and later became an Assistant Public Prosecutor from March 13, 2018. The petitioner applied for the post of District Judge from the Bar in 2020, 2021, and 2022 but was unsuccessful.

In 2023, the High Court of Orissa issued an advertisement for the same post. The petitioner applied, but her eligibility was questioned, and she was found ineligible due to the requirement of seven years of continuous Bar practice. The respondent argues that the petitioner does not meet this criterion. The petitioner contends that having been allowed to sit for the examination in previous years, she should not be disqualified this time. The court notes the petitioner’s active practice from 2004 to 2014 but finds that she lacks seven years of continuous practice preceding her application.

The case revolves around the eligibility criteria outlined in Article 233 of Chapter-VI (subordinate Courts) of the Constitution of India, specifically Clause 2, governing the appointment of District Judges. The court has to determine whether the petitioner fulfils the necessary criteria for eligibility in the recruitment examination for the post of District Judge from the Bar.

Court analysis & judgement:

In this judgment, the court addresses the petitioner’s plea for inclusion in the eligibility list for the recruitment examination to the post of District Judge from the Bar. The petitioner relies on the principle of estoppel, arguing that having been allowed to appear in the examination in previous years, she should not be disqualified this time. The court dismisses this argument, emphasizing that the inadvertent allowance of a person to appear in an examination earlier, who was not eligible, does not confer a right to appear when the necessary eligibility criteria are not met. The court distinguishes the relied-upon decisions in Basanta Kumar Mohanty and N. Murugesan, stating that they are not applicable to the present case due to different contexts and statutory bars.

The judgment refers to the eligibility criteria stated in the advertisement by the High Court of Orissa, which requires candidates to have at least seven years of practice as an advocate as of April 1, 2023. The court concludes that the petitioner does not meet this criterion, rendering her ineligible for the examination.

The court cites the decisions of the Apex Court in Deepak Aggarwal and Dheeraj Mor, applying them to the present case. It asserts that the petitioner’s lack of continuous practice for seven years makes her ineligible. Consequently, the court upholds the decision of the Opposite Party (OP) to consider the petitioner ineligible for the post of District Judge, stating that it does not require interference. As a result, the writ petition is dismissed as devoid of merit, with no order as to costs.

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Written By: Gauri Joshi

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Legal Precision Prevails: Court’s Rigorous Analysis Leads to Quashing of Charges in Favor of Petitioners

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Title: Ashutosh Tiwari, Kamlesh Shukla vs The State of M.P & Vikas Khare

Citation: MISC. CRIMINAL CASE No. 6138 of 2010

Coram: HON’BLE JUSTICE VISHAL DHAGAT

Decided on: 6-11-2023

Introduction:

The petitioners have filed a petition under Section 482 of the Criminal Procedure Code (Cr.P.C) seeking the quashing of proceedings in complaint case No. 218/2010. This case is currently pending before the Chief Judicial Magistrate in Shahdol. The counsel for the petitioners highlights that a stay over the proceedings was initially granted by the court on July 7, 2010, until the next date of hearing. Subsequently, this stay was continued on March 15, 2013, and May 2, 2014. However, after the latter date, the case was not listed before the court. The council requests a hearing for the case, emphasising that it has been pending before the court since 2010.

Facts:

The facts of the case are such that, The petitioners are seeking to quash proceedings in complaint case No.218/2010, where they are accused of offences under Section 294, 506(II) of IPC, and 3(1)(x) of SC & ST (POA) Act. The petitioner’s counsel argues that no offence is made out, emphasising that the alleged abusive remarks occurred in a school staff room, which is not a public place. They contend that the remarks don’t fall under Section 3(1)(x) of the Act as it requires a place within public view.

Furthermore, the defence asserts that Section 294 of IPC, which deals with obscene acts or utterances, applies only to public places. The government advocate argues that the staff room can be considered a public place as other teachers were present during the alleged incident. Respondent No.2, the complainant, is not actively pursuing the case, leading to the court proceeding ex parte.

The relevant sections of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Section 3(1)(x)), and the Indian Penal Code (Sections 294 and 503) are invoked in this case. The crux of the matter lies in whether the staff room is deemed a public place and if the alleged acts and utterances fulfil the legal criteria for the stated offences.

Court analysis and order:

The judgment in this case reflects the court’s consideration of the arguments presented by both the petitioners and the government advocate. Here is an analysis of the judgment: The court carefully examines the definitions provided in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Section 3(1)(x)), and the Indian Penal Code (Section 294 and 503). It emphasizes that for an offence under Section 3(1)(x) of the SC & ST (POA) Act, the act must occur in public view. The court addresses the crucial point of whether the staff room qualifies as a public place, asserting that the staff room is not within public view. Emphasis is placed on the restricted access to the staff room, stating that the common public or citizens cannot enter without school permission. The court extends its analysis to Section 294 of the IPC, highlighting that the alleged abuses did not take place in a public location, reiterating that the staff room does not qualify as a public place.

The judgment scrutinizes the complainant’s statement and notes the absence of any mention of alarm caused by the alleged threats. It concludes that an offence under Section 506 of IPC is not established. Based on the considerations above, the court allows the petition filed by the petitioners under Section 482 of Cr.P.C. The court quashes the proceedings in complaint Case No.218/2010 against the petitioners, involving charges under Section 294, 506(II) of IPC & 3(1)(x) of SC & ST (POA) Act.

The petition filed by the petitioners is allowed and disposed of. The judgment concludes by mentioning the issuance of a certified copy as per the rules. In summary, the court’s decision rests on the interpretation of relevant legal provisions and a meticulous examination of the circumstances surrounding the alleged offences. The finding is in favour of the petitioners, leading to the quashing of the proceedings.

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 Written By: Gauri Joshi

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Landmark Decision: Court Upholds Social Welfare Nature of Provident Fund Act, Dismisses Appeals

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Title: THANKAMMA BABY vs. THE REGIONAL PROVIDENT FUND COMMISSIONER, KOCHI, KERALA

Citation: CIVIL APPEAL NO. 4619 OF 2010

Coram:  ABHAY S. OKA, J.

Introduction:

The case revolves around whether the appellant’s establishment, engaged in manufacturing, assembling, and selling umbrellas, falls under the category of ‘trading and commercial establishments’ as per the 1962 notification issued under the 1952 Act. The appellant argues that it does not, based on the interpretation of the relevant clauses and legislative intent, while the respondent argues.

Facts:

In the case presented, the main issue revolves around the interpretation of clause (b) of sub-Section (3) of Section 1 of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 (the 1952 Act). The appellant, engaged in manufacturing, assembling, and selling umbrellas, received a notice from the Regional Provident Fund Commissioner, alleging that the 1952 Act applied to the appellant. The notice claimed that the appellant’s business fell under the category of ‘trading and commercial establishments’ as notified by the Central Government in 1962.

A Section 7A inquiry was conducted by the respondent, who concluded that the 1962 notification covered the appellant’s case. The appellant filed a Review Petition, which was rejected, and an appeal to the Appellate Authority was also dismissed. Subsequently, a Writ Petition was filed, but the learned Single Judge dismissed it. The Division Bench of the Kerala High Court, in a Writ Appeal filed by the respondent, confirmed the order of the Single Judge.

The appellant’s counsel argued that establishments covered by clause (a) of sub-Section (3) of Section 1 pertain to factories engaged in industries specified in Schedule I of the 1952 Act. Therefore, according to the appellant’s submission, clause (a) is applicable only to factories engaged in Schedule I industries, and factories not specified in Schedule I cannot be covered by clause (b) of sub-Section (3). The counsel asserted that clause (b) of sub-Section (3) does not refer to factories and, based on legislative intent, ‘any other establishment’ in clause (b) should not include a factory. The counsel also referred to a decision of the Apex Court in the case of Regional Provident Fund Commissioner v. Shibn Metal Works in support of the argument. On the other hand, the counsel for the respondent contended that all levels of authority, including the respondent, appellate authority, Single Judge, and Division Bench, have unanimously ruled against the appellant. The argument was based on the assertion that the appellant’s business involves manufacturing and assembling umbrellas and selling them. Therefore, the respondent’s counsel argued that the appellant falls under the category of trading and commercial establishments specified in the 1962 notification.

Court analysis & Judgement:

In the judgment, it appears that the court, likely the Supreme Court or a relevant higher court, considered and rejected the appellant’s argument regarding the interpretation of clause (b) of sub-Section (3) of Section 1 of the Employees’ Provident Fund and Miscellaneous Provisions Act, 1952 (the 1952 Act). The Constitution Bench, after considering clause (a) of sub-Section (3) of Section 1, held that the Central Government has the power to specify establishments or classes of establishments not covered by the industries listed in Schedule I of the 1952 Act.                                The court rejected the argument that a notification under clause (b) could only be issued in respect of factories engaged in industries not covered by Schedule I. The judgment emphasized the social welfare nature of the legislation, describing it as a measure of social justice. In interpreting the legislation, the court adopted a purposive approach to give effect to the legislature’s intention. The court concluded that the notification under clause (b) could be issued for factories engaged in any industry not specified in Schedule I. Therefore, the contention that factories not covered by industries in Schedule I are exempt from the coverage of clause (b) was rejected. The judgment affirmed the views of the learned Single Judge and Division Bench of the Kerala High Court.

As a result, the appeals were dismissed, and no costs were awarded. The judgment also mentioned that if the appellant had incurred any monetary liability based on the orders of the respondent confirmed by the High Court, the appellant was granted three months to pay the necessary amount. This suggests that the appellant might have financial obligations resulting from the legal proceedings, and the court allowed a grace period for payment.

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