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rajasthan high court

Judicial Disapproval: Court Slams Deceptive Conduct, Imposes Cost, and Orders Relief Allocation in Writ Petition Controversy

Title: Geeta Devi vs State Of Rajasthan

Citation: S.B. Civil Writ Petition No. 620/2020

Coram: JUSTICE DINESH MEHTA

Decided on: 28/03/2023.

Introduction:

The respondent, Municipal Board, Bilara, has filed the current application seeking the recall of the interim order dated 14.01.2020 issued by the court. The nature of the case or the specific circumstances leading to the interim order .

Facts:

In this case, the respondent, Municipal Board, Bilara, has filed an application seeking the recall of an interim order dated 14.01.2020. During the argument, the respondent’s counsel highlighted that the petitioner, along with four others, had previously filed a joint writ petition (S.B. Civil Writ Petition No.13679/2019), which was listed on 13.09.2019. The court notes that a Co-ordinate Bench of the High Court had considered the petitioner’s case on that day and issued notices without granting any interim order. The respondent’s counsel argued that on the same day, two other cases challenging the same impugned order were listed, and detailed orders with interim relief were granted. However, in the petitioner’s case, only notices were ordered. The respondent’s counsel further brought to the court’s attention that the petitioner(s) withdrew the earlier writ petition on 10.01.2020 without informing the respondent’s counsel. In response, the petitioner’s counsel argued that there was no concealment, as the petitioner had mentioned the filing and withdrawal of the earlier writ petition in the current application.

To verify the claims, the court examined the records of the earlier writ petitions and found that the petitioner’s case was listed on 13.09.2019, and notices were issued without granting interim relief. The court expressed shock at the petitioner’s actions, noting that after failing to obtain an interim order in the first writ petition, the petitioner withdrew it on the same day she learned about an interim order in another similar case (SBCWP No.15048/2019).

The court criticized the petitioner for not disclosing the withdrawal of the earlier writ petition and filing the current one with the same assertions. It emphasized that withdrawing and filing a fresh writ petition without a material change in circumstances is impermissible in law. The court found that there was no change in facts or pleadings between the two petitions and criticized the petitioner for attempting to mislead the court.

Judgement analysis:

In this judgment, the court expresses strong disapproval of the petitioner’s conduct and her counsel, stating that not only should the interim order be recalled, but the writ petition deserves to be dismissed. The court cites an attempt to mislead the court and invokes the principle of res judicata, arguing that the petitioner, by withdrawing and filing a fresh petition without a material change in circumstances, has acted improperly.

The court emphasizes that the petitioner, by misleading the court, has secured an interim order and continued in services for over three years, causing an illegal burden on the public exchequer. As a consequence, the court imposes a cost of ₹50,000 on the petitioner, payable to the respondent Municipal Board, Bilara. The Board is granted the authority to recover this cost from the petitioner’s deducted or deposited amount in accordance with the law. The recovered amount is directed to be utilized by the Board for the construction or renovation of public toilets for females. Furthermore, the court dismisses the writ petition and the stay petition. While expressing displeasure about the conduct of the learned counsel, the court refrains from taking any action against them, expressing hope that they would exercise caution in the future.

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Written By: Gauri Joshi

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Land Dispute Resolved: Court Upholds BOR Decision, Emphasizes Legal Precedents and Rejects Petitioner’s Claims Under Article 227

Title: Amar Chand S/o Moolchand and ORS. Vs State of Rajasthan and ORS.

Citation: S.B. Civil Writ Petition No. 9798/2016

Coram: HON’BLE MR. JUSTICE SAMEER JAIN

Decided on: 29/03/2023.

Introduction:

The current petition, filed under Article 227 of the Constitution of India, challenges the order dated 29.06.2016, issued by the Board of Revenue (BOR) Ajmer in Revision/6763/2011. This order favored the respondents in their revision petition. The case revolves around Mutation Entry No. 192 dated 20.04.2002, issued by the Gram Panchayat in Sandeda, Tehsil Peeplu, District Tonk

Facts:

The current legal matter involves a dispute over a piece of land measuring 29 Bigas 11 Biswa, claimed by both the petitioners and respondents. The petitioners argue that the land belonged to their ancestors, presenting evidence to support their claim. The legal proceedings include an appeal before the Sub Divisional Officer (SDO), Piplu, Tonk, which was initially allowed, leading to a remittance of the case to the Tehsildar for fresh consideration. Subsequent appeals and revisions followed, with the Board of Revenue ultimately reversing the earlier decisions in favor of the respondents. The petitioners assert that the Board of Revenue’s decision was based on incomplete consideration, highlighting applications they filed indicating the revision’s ineffectiveness due to the successful challenge of the Tehsildar’s order. They also point out the death of some non-applicants, leading to the abatement of the revision.

In response, the respondents argue that the Civil Court’s decision in Suit No. 60/2003 validated their status as legal successors and upheld the validity of mutation entries. They contend that the orders challenged in the revision become irrelevant in light of the Civil Court’s findings. The respondents emphasize the sub judice nature of the matter before the Board of Revenue, downplaying the significance of the Tehsildar’s order and the mutation entry for legal rights.

The court, in considering the case under Article 227 of the Constitution of India, emphasizes the limited scope of interference and the need for sparing use of this jurisdiction. The judgment underscores that such powers are not meant to convert the High Court into an appellate authority but to ensure the subordinate courts adhere to the law. The court refers to precedents, including the principle that orders below are presumed justified if passed after due consideration of facts and materials on record.

Judgement analysis:

In this judgment analysis, the court addresses a dispute over a piece of land by considering the facts and legal arguments presented. The court notes that the Civil Suit No. 60/2003 for declaration was decided against the petitioners by the Trial Court, with specific issues related to the legal successor of the deceased Veerumal and the validity of mutation entries. The Board of Revenue (BOR) took this into account and concluded that once the Trial Court had decided these issues, the matter before the BOR was adjudicated. The court rejects the petitioner’s argument that the Tehsildar’s denovo investigation and fresh order should be considered. It cites legal precedents, emphasizing that mutation entries do not determine land title and are fiscal in nature. The court agrees with the BOR’s reliance on the Civil Court’s decision in Suit No. 60/2003, which addressed title and succession issues concerning Veerumal, and dismisses the significance of any subsequent order by the Tehsildar.

The judgment underscores that the BOR’s decision was well-reasoned, in accordance with legal principles, and did not violate natural justice. The court supports the BOR’s conclusion and finds no grounds for interference under Article 227 of the Constitution of India. Consequently, the writ petition is dismissed as devoid of merits, and any pending applications are disposed of.

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Written By: Gauri Joshi

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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

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

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”

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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