Tag Archives: #writpetition

INTRODUCTION

The High Court of Bombay: passed a judgement on 06 June 2023. In the case of NIKHIL UTTAM UNDRE Vs STATE OF MAHARASHTRA AND OTHERS THE SECRETARY AND ORS IN WRIT PETITION NO. 12614 OF 2022 which was passed by a single bench comprising of HONOURABLE SHRI JUSTICE N. J. JAMADAR, a village panchayat member from Manjri (Khurd), Tal. Haveli, District Pune found himself facing disqualification under section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1959. The disqualification was imposed based on allegations of encroachment on government land. The legality, propriety, and correctness of the disqualification were challenged through a writ petition under Article 227 of the Constitution of India. This blog post aims to provide an overview and analysis of the key arguments presented by the parties involved in the case, along with relevant case laws.

FACTS

The petitioner, who had been elected as a member of the village panchayat in 2001, was accused of encroaching on Gaothan land belonging to the village panchayat. The dispute application was filed by a respondent, alleging that the petitioner and his family members had committed unauthorized construction and encroachment. The District Collector initially dismissed the application, stating that the complainant had failed to prove the encroachment. However, on appeal, the Additional Divisional Commissioner overturned the decision, holding that the petitioner had indeed incurred disqualification.

ARGUMENTS PRESENTED

The petitioner’s counsel argued that the Additional Divisional Commissioner erred in relying on documents not presented before the District Collector. They contended that there was no substantial evidence to support the finding that the property in question was government-owned Gaothan land. The counsel emphasized that democratic principles should not be undermined by unseating a democratically elected member based on mere conjectures.

Another crucial point raised by the petitioner’s counsel was that the Additional Divisional Commissioner disregarded the petitioner’s claim of residing separately from his father and grandfather, which was evidenced by a separate ration card. They highlighted a factual error in the determination of when the petitioner’s name was removed from the original ration card.

On the other side, the counsel for the respondent supporting the disqualification argued that the entries in the Inquiry Register clearly established that the petitioner’s house was located on Gaothan land. They contended that in the absence of individual proprietary title documents, all lands automatically vested in the State Government. They further relied on the Supreme Court’s decision in Janabai vs. Additional Commissioner and Others (2006) 3 SCC 542, which supported the disqualification based on encroachment.

LEGAL ANALYSIS

Section 14(1)(j-3) of the Maharashtra Village Panchayats Act, 1959, provides the grounds for disqualification of a village panchayat member. It states that a person shall be disqualified if they commit encroachment on government land or public property. This provision aims to prevent conflicts of interest and ensure that those responsible for acting against encroachments do not themselves engage in such acts. The term “person” has been interpreted to include legal representatives and family members of the person whose qualification is in question.

The Division Bench of the High Court, in the case of Devidas s/o. Matiramji Surwade vs. Additional Commissioner, Amaravati (2003) 2 Mh.L.J. 318, held that disqualification extends to legal heirs, agents, assignees, or transferees of the person who committed the encroachment. The Supreme Court later affirmed this interpretation in the Janabai case.

CONCLUSION

In this case, the disqualification of the petitioner as a village panchayat member based on allegations of encroachment on government land has been challenged through a writ petition. The arguments put forth by both parties revolve around the sufficiency of evidence and the interpretation of relevant legal provisions. It remains to be seen how the Court will weigh the evidence and apply the law to arrive at a just decision.

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JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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INTRODUCTION

The High Court of Bombay bench at Aurangabad passed a judgement on 30 May 2023. In the case of GAJANAN B. RABDE VS THE CHIEF ADMINISTRATIVE OFFICER, MAHARASHTRA JEEVAN PRADHIKARAN & ANR IN WRIT PETITION NO.9744 OF 2023 which was passed by a single bench comprising of HONOURABLE SHRI JUSTICE G.S. KULKARNI, the court examined a petition filed by an employee of Maharashtra Jeevan Pradhikaran, who sought a change in his date of birth from June 4, 1965, to August 26, 1966, at the end of his service tenure. The petitioner based his request on a domicile certificate and a birth certificate obtained shortly before his retirement. This blog post will analyse the judgment and discuss the court’s reasoning behind dismissing the petition.

FACTS

The petitioner had joined the respondent’s employment on January 4, 1990, declaring his date of birth as June 4, 1965, based on his school leaving certificate. In support of his claim, the petitioner presented a domicile certificate issued on April 30, 1990, which stated his date of birth as August 26, 1966. The petitioner also claimed to have submitted application on May 7, 1990, requesting a change in his date of birth. However, the respondents disputed the existence of this application.

The petitioner, just before his retirement, obtained a birth certificate dated January 12, 2022, which indicated his date of birth as August 26, 1966. The certificate, however, was registered on December 13, 1993, several years after the petitioner’s birth and after he had already joined the employment. Relying on this birth certificate, the petitioner submitted a fresh application on February 24, 2023, seeking a change in his date of birth.

THE PETITIONER’S ARGUMENTS

The petitioner’s counsel argued that the respondents should consider the documents submitted by the petitioner, including the birth certificate, and make the necessary modifications in the service record. They contended that the petitioner was initially unable to provide a birth certificate and relied on the school leaving certificate. However, now that a birth certificate was available, it should be accepted. The counsel also relied on a previous case where a similar change in date of birth was accepted.

THE RESPONDENT’S ARGUMENTS

The respondent’s counsel opposed the petition on various grounds. Firstly, they argued that the petitioner should not be allowed to approach the court at the fag end of his service seeking a change in his date of birth. They claimed that the petition was barred by principles of delay and laches since the petitioner had not pursued his application for change of date of birth for a period of almost 33 years.

The respondents also raised objections to the validity of the birth certificate obtained by the petitioner, as it was registered 27 years after his birth, contrary to the provisions of the Registration of Births and Deaths Act, 1969. They also disputed the existence of the petitioner’s representation/application dated May 7, 1990, as it was not on record.

COURT’S ANALYSIS AND DECISION

After considering the arguments and examining the documents and precedents, the court dismissed the petition. The court noted that the petitioner had filed the petition after a significant delay of almost 33 years. Even if the petitioner had made an application in 1990, he did not take any steps to pursue it during that lengthy period. The court found it peculiar that the petitioner had only sought a change in his date of birth at the end of his service tenure.

The court emphasized that a person cannot be permitted to sleep over their rights and approach the employer for changes in the date of birth at the fag end of their career. It referred to several Supreme Court judgments that had consistently held that such changes could not be allowed in the final stages of employment. The court cited the principle that employees should not be allowed to seek alterations in their date of birth after remaining silent.

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JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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INTRODUCTION

The High Court of Bombay bench at Aurangabad passed a judgement on 30 May 2023. In the case of NIHAL ANANDRAO TANDEKAR VS THE NUCLEAR POWER CORPORATION OF INDIA AND ORS. IN WRIT PETITION NO.14319 OF 2023 which was passed by a single bench comprising of HONOURABLE SHRI JUSTICE G.S. KULKARNI, the court addressed a case concerning the eligibility criteria for a job application and the recognition of degrees awarded through distance education. The petitioner, who intended to apply for the position of Deputy Manager (C & MM), faced rejection of their application based on the contention that their MBA degree obtained from a distance learning institution was not acceptable. The court examined the issue and rendered an important decision that has far-reaching implications for the recognition of degrees awarded through distance education.

BACKGROUND

The petitioner possessed a graduation degree in engineering and an MBA degree in Materials Management obtained from Madhya Pradesh Bhoj (Open) University, Bhopal, a recognized distance education institution. However, their application was rejected by the respondent, who refused to acknowledge the petitioner’s distance education degree as a valid qualification for the position. The petitioner argued that there is no distinction between full-time degree courses and degrees awarded by open and distance learning institutions (ODL).

RECOGNITION OF DISTANCE EDUCATION DEGREES

To support their contention, the petitioner’s counsel referred to a notification issued by the University Grants Commission (UGC) on October 14, 2013. This notification stated that degrees awarded by ODL institutions are at par with those awarded by conventional universities/institutions. Furthermore, the UGC circular dated May 5, 2004, explicitly mentioned that degrees awarded by open universities should be treated as equivalent to the corresponding degrees awarded by traditional universities in the country.

COURT’S DECISION

The court upheld the petitioner’s argument and emphasized that the UGC, as an expert body, has the authority to determine the equivalence of degrees. It acknowledged that degrees awarded by universities conducting full-time courses are now considered equal to those conferred by open universities under distance education, as recognized by the UGC. The respondent, through their counsel, agreed with this position and undertook to permit the petitioner to submit their application for the position.

The court accepted the respondent’s undertaking and disposed of the petition, directing the respondent to allow the petitioner to complete the necessary formalities for participation in the selection process. The participation of the petitioner, however, would be considered on its own merits by the respondent.

JUDGMENT

This judgment holds significant implications for the recognition and acceptance of degrees obtained through distance education. By acknowledging the UGC’s notification, the court affirms the equivalence of degrees awarded by distance education institutions and traditional universities. This decision ensures that candidates with degrees earned through distance education are not unjustly discriminated against in employment opportunities.

The judgment sets a precedent for other cases involving the recognition of distance education degrees. It reinforces the idea that the mode of education should not undermine the value or legitimacy of the degrees awarded. As long as the degrees are granted by recognized institutions and comply with UGC specifications, they should be considered on par with those obtained through conventional full-time courses.

CONCLUSION

The recent judgment exemplifies the court’s recognition of the equivalence of degrees awarded by distance education institutions. By relying on the UGC’s notification, the court has reaffirmed the importance of providing equal opportunities to candidates with degrees obtained through distance education. This decision serves as a crucial step towards ensuring that individuals pursuing education through non-traditional means are not disadvantaged in their professional pursuits. It also emphasizes the need for a progressive approach in recognizing the evolving landscape of education and the diverse modes of learning available to students.

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JUDGEMENT REVIEWED BY VETHIKA D PORWAL, BMS COLLEGE OF LAW

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INTRODUCTION

The High Court of Bombay passed a judgement on 26 May 2023. In the case of RAJU DHONDIRAM AKRUPE Vs STATE OF MAHA. THR. PRIN. SECRETARY (DRUGS) MEDICAL EDUCATION AND DRUGS DEPT. AND ORS IN WRIT PETITION NO. 6239 OF 2023 which was passed by a division bench comprising of HONOURABLE SHRI JUSTICE ABHAY AHUJA and HONOURABLE SHRI JUSTICE M. M. SATHAYE, the court deliberated on a petition seeking to quash an interim order passed by the Maharashtra Administrative Tribunal (MAT). The petitioner, a government employee, had requested age relaxation to participate in the selection process for a higher post through nomination and appear in an upcoming examination. This blog will examine the key arguments presented, the court’s analysis, and the ultimate judgment rendered in this case.

FACTS

The petitioner, employed as a Food Safety Officer, was 39 years old and aimed to appear for the Combined Civil Services Preliminary Examination 2023 conducted by the Maharashtra Public Service Commission (MPSC). Citing the Bombay Civil Services, Classification, and Recruitment Rules of 1939 (the “1939 Rules”), along with a government circular from 2003 and a previous court decision, the petitioner sought age relaxation as a government servant. The petitioner argued that the 1939 Rules, despite being formulated prior to India’s independence and the Constitution, were still valid and applicable.

PETITIONER’S CONTENTIONS

The petitioner’s counsel argued that the 1939 Rules entitled government servants to upper age relaxation. Although the petitioner had crossed the general category’s age limit of 38 years, being 39 years old, the counsel contended that the 1939 Rules still held legal authority. They referred to Rule 7 of the 1939 Rules, which outlined the qualifications for candidates in terms of age and education for government service appointments. Specifically, Note 3B under Rule 7 allowed for an exception to the upper age limit for government servants. The counsel maintained that the government circular issued in 2003, limiting age relaxation for government servants, contravened the 1939 Rules, which had statutory force.

PETITIONER’S ORIGINAL APPLICATION

In the original application filed before the MAT, the petitioner sought complete age relaxation for selection through nomination based on the 1939 Rules, the 2003 government circular, and a prior court decision. Additionally, the petitioner requested a declaration that the exclusion of an upper age limit in the advertisement for in-service candidates was illegal and unconstitutional. They further sought a direction to the state government to adopt and amend the Recruitment Rules and a direction to the MPSC to incorporate the amendment as a qualification in the selection process for the advertised post.

MAT INTERIM ORDER AND SUBSEQUENT COURT ANALYSIS

The MAT rejected the petitioner’s interim application, stating that the 1939 Rules did not mention selection by nomination as it was introduced after independence. The MAT also noted that the Rules of 1986, which governed the upper age limit for recruitment by nomination, did not provide age relaxation for government servants. Based on the Recruitment Rules of 2013 and 2022 for the post of Assistant Commissioner (Food)-cum-Designated Officer (Group A), the MAT determined that the 1939 Rules were inapplicable. The MAT concluded that no case was made out by the petitioner and rejected the interim relief application.

In the subsequent court analysis, the court concurred with the MAT’s interpretation. The court observed that the 1939 Rules did not address selection by nomination. They referred to the Recruitment Rules of 1986 and subsequent Rules, which did not provide age relaxation for government servants. The court noted that the Recruitment Rules of 2022 were applicable, and as they did not permit age relaxation beyond 38 years, the petitioner’s argument for relaxation was untenable. The court emphasized that public employment law was primarily governed by statutory rules, and unless specific rules permitted age relaxation, it could not be granted.

CASE LAW

In its analysis, the court cited the precedent set by the case of Anil Motilal Nimbhure vs. State of Maharashtra and Others (Writ Petition No.6179 of 2007, decided on 7th January 2008) where the court had held that the 1939 Rules were not applicable to selection by nomination. The court emphasized that this precedent was binding, and the petitioner’s reliance on the 1939 Rules was misplaced. As a result, the court concluded that the petitioner’s case lacked merit, and the interim relief was rightly rejected by the MAT.

JUDGMENT

Considering the arguments presented and the relevant legal provisions, the court held that the petitioner was not entitled to age relaxation for selection through nomination. The court affirmed the decision of the MAT, stating that the 1939 Rules did not apply to the present case and that the Recruitment Rules of 2022 governed the selection process. Consequently, the court dismissed the petition seeking to quash the MAT’s interim order.

CONCLUSION

This judgment underscores the significance of statutory rules in public employment cases and reiterates that age relaxation can only be granted if explicitly provided for by the applicable rules. The court’s analysis demonstrates the importance of legal precedent and the binding nature of earlier court decisions. This judgment serves as a reminder that thorough understanding and interpretation of the relevant laws and rules are vital for petitioners seeking relief in public employment matters.

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