LEGAL NEWS 20.11.2008

FinMin objects to judges’ pay hike plan
http://www.expressindia.com/latest-news/FinMin-objects-to-judges–pay-hike-plan/387840/
Ravish Tiwari,Maneesh Chhibber
Posted: Nov 20, 2008 at 1437 hrs IST
New Delhi, November 19: The plan of the higher judiciary for a three-fold-plus hike in salaries of members of the higher judiciary has not found favour with the Union Finance Ministry.
According to sources in the Finance Ministry, it has recommended a cut in the salary structure proposed by a three-judge committee constituted by the Chief Justice of India (CJI).
Since the Finance Ministry’s stand is at variance with recommendations of the Union Law Ministry, the matter is likely to be taken up by the Union Cabinet in its meeting on Thursday to resolve the issue.
Once the Cabinet takes a call on the issue, a Bill would be introduced in Parliament as salaries of higher judiciary are governed by an Act of Parliament. The ‘Indian Express’ had first published the report about the demand by the judiciary for a three-fold-plus hike in salaries.
The committee, which comprised Justices Ashok Bhan (now retired) and Altamas Kabir of the Supreme Court and Madras High Court Chief Justice (CJ) A P Shah, had proposed that the CJI’s monthly salary be raised from the present Rs 33,000 to Rs 1.10 lakh while that of his brother-judges and CJs of High Courts be hiked to Rs 1 lakh from the present 30,000.
As per the proposal, sitting judges of various High Courts were to receive Rs 90,000 per month as against Rs 26,000 that they get now.
Sources said the proposal, if accepted, would have placed the CJI at par with Governors while SC judges and HC CJs would have been placed at par with the Cabinet Secretary.
As for the sitting judges of various HCs, the Finance Ministry’s proposal wants to place them in the same category as secretary-level officers of the Government of India.
The three-judge committee had also recommended a sharp hike in post-retirement benefits of judges. It has recommended that the CJI receive a consolidated salary of Rs 1 lakh per month, which is still more than what the Cabinet Secretary is to receive following the implementation of the sixth pay panel report.
The ministry has suggested that the salaries of the SC judges and HC CJs be also pared down to bring them at par with what the Cabinet Secretary of the Government of India is entitled to under the Sixth Pay Commission. Similarly, the salary of a sitting judge of the HC has also been recommended to be cut to bring it down to Rs 80,000 per month.
On the issue of sumptuary allowance, while the judges’ panel had recommended a one-third hike, the ministry wants status quo. In case of furnishing allowances, while judges had sought a three-fold hike, the Finance Ministry has recommended only a two-fold hike.
With regard to pensionary benefits, while the judges’ panel wanted 50 per cent of the last salary drawn plus dearness allowance (DA), the Finance Ministry has advised that the length of service be taken into consideration while deciding the pension, something that the judges’ committee did not want. The ministry has also sought a limit of Rs 6 lakh per annum pension plus DA for CJI, while the limit is Rs 5.4 lakh per annum for SC judges and HC CJs and Rs 4.8 lakh for HC judges.
Since the revised pay structure would be applicable from January 1, 2006 and effective from September 1, 2008, the Law Ministry has estimated an additional expenditure of Rs 46 crore, which includes Rs 4 crore recurring expenditure per annum and Rs 42 crore as arrears. The judges’ panel had said 40 per cent of the arrears be paid in the current year while the remaining 60 per cent be paid the next year.

Indians first
http://www.dnaindia.com/report.asp?newsid=1207931&pageid=0
Wednesday, November 19, 2008 21:20 IST
The Indian judiciary, especially in the higher reaches, has always shown its deep commitment to the Constitution, in letter and spirit, something that the political class and the executive have not managed to do. Time and again when other pillars of the Indian state have faltered, the judiciary has stepped in to remind us what the true course is. And in these troubled times, when inimical forces within try and tear the social fabric asunder, the judiciary’s voice, from the heart as much as from the head, is sorely needed.In this category of sensible and robust advice falls the speech delivered on Tuesday by the Chief Justice of India(CJI), KG Balakrishnan. Reminding us that India is one country and all Indians are one, the CJI has held out a warning of the dangers of indulging in divisive politics for narrow, local gains. The nation has to stand as one or it does not stand at all.The CJI said, “Such a regressive brand of political action is threatening to undo the very foundations on which our constitutional order has been built, namely those of respect for rule of law, equal treatment before the law and due process.” Strong words and also deeply significant. India cannot be a great nation — regardless of its GDP growth or the number of mobile phones in use — if it cannot comprehend the sanctity of its Constitution. We became a republic when we adopted the Constitution — that gives us our primary identity in the comity of nations.Such a message is aimed at all those forces who have tried to use narrow parochial tactics to gain short term advantage. In Maharashtra we have seen this in recent times in full force. The agitation against north Indians in Maharashtra has let loose a most dangerous demon of all — regional factionalism. This was nothing if not an attempt to divide citizens on the basis of their regional and linguistic origin. Raj Thackeray is of course not the first or only politician to make political hay out of the “sons of the soil platform”. This has been the tried and tested formula for years and the pity is that it often generates electoral gains.The Supreme Court often has to act as the conscience of the nation. Yet it is something of a matter of shame that the chief justice has to remind us that we are all Indians. Surely, that should be the first identity that we accept and live by. Instead, we have allowed ourselves to be divided on every possible fault line by rabblerousing politicians who play upon our weaknesses and insecurities for electoral gains. It may behoove us all to take heed of the CJI’s wise words and understand the devastation that will follow if we don’t.

HC raps Haryana for delay in filling vacant posts
http://www.expressindia.com/latest-news/hc-raps-haryana-for-delay-in-filling-vacant-posts/387375/
Posted: Nov 19, 2008 at 2243 hrs IST
A public interest litigation (PIL) filed by Advocate G D Gupta of Jagadhari, seeking directions to fill the posts of presidents and members of the non-functional district-level consumer forums at Hisar, Kurukshetra, Panipat and Yamunanagar, came up for resumed hearing in the Punjab and Haryana High Court today.
The Haryana government filed an affidavit stating the antecedents of two candidates, namely Rishi Parkash and Dina Nath, who have been selected for the post of presidents for consumer forums at Panipat and Yamunanagar, are in the process of verification, after which their appointment letters would be issued.
Counsel for the petitioner, Advocate H C Arora demanded that directions be issued to the Haryana government to ensure that there is no further delay in appointments.
“The submission made by Arora cannot be brushed aside lightly,” said the Chief Justice. Government did not take timely steps to fill the vacant posts and the consumer forums remained non-functional for more than six months, causing inconvenience to consumer, he added. The petitioner, in the PIL, stated that approximately Rs one crore had been spent by way of establishment expenses of staff of these forums during the period when they were non-functional.

Judicial Activism, PILs and all that jazz
http://lawandotherthings.blogspot.com/2008/11/judicial-activism-pils-and-all-that.html
Tuesday, November 18, 2008
As a follow up from Madhav’s post, I think that terms like ‘judicial activism’ can hide more than they reveal. One needs to be careful about the precise judicial role where the court is being accused of being activist. PIL is strictly a standing issue, and the only relevant question at this stage is who should be allowed to bring in an action. The various possibilities, using Cane, include (a) direct and sufficient interest standing, (b) associational standing (where a group of persons having direct and sufficient interest is represented by an organisation or person), and (c) public interest standing (where the petitioner represents the public interst).All three categories involve different issues. It is crucial in (b) that the representation is authorised in some form by those represented – Cane calls for a ‘democratic stake’ by those represented in the association. The simple idea is that the association needs to have some basis on which it claims to represent my interest. This category is similar to class-action suits.In (c), on the other hand, it is important that if public interest standing is to be allowed at all, the petitioner must do a good job of it. It is much better to not allow an inexpert (if well-intentioned) petitioner bringing in a badly argued case which creates bad precedent since it does more harm than good to the public interest. Of course the boundaries between (b) and (c) are fuzzy and there will be overlap. Was the Narmada Bachao Andolan case about associational standing or public interest standing? Rules need to be evolved for these hybrid cases, but it does not detract from the basic distinction.Justiceability, on the other hand, is a concept distinct from standing, and should arguably apply equally to whoever brings the action. Here one has to consider whether there is any area of law which is completely inaccessible to the judiciary. I personally believe that once a violation of fundamental rights has been made out, the Court has no option under Article 32 but to consider it as justiceable – although it can accord limited deference to the Executive or the Legislature, depending on the subject matter. A good example of a case which was (wrongly) thrown out at entry stage on justiceability grounds even though it involved important fundamental rights issues was Ahmedabad Women Action Group (involving constitutional challenge to personal laws). Hunt argues against the spatial concept inherent in any talk of ‘areas of deference’ and says that no case can be a priori judged to be non-justiceable if it prima facie involves fundamental rights violation. The degree of deference due is a judicial decision that needs to be decided on the facts of the case, and not at the entry stage itself. Deference is obviously connected with the issue of the appropriate standard of review.Justiceability should also be distinguished from a (legitimate) screening method used at the entry stage – whether a prima facie case has been made out (or, in other words, whether the petitioner has any chance of success) is a distinct and legitimate resource management consideration.Finally, activism in the context of remedies is also an entirely separate issue, and one has to consider the question in the context of Article 142 (‘complete justice’ requirement).When talking about judicial activism, we need to be clear in what context we are discussing it. A Court may be ‘activist’ on standing and remedies, which being retrogressive on standard of review.(Comments, as always, are welcome, from stray and astray readers alike)
Posted by tarunabh at 11:29 PM

Judgement of Apex Court
http://www.merinews.com/catFull.jsp?articleID=149089
The apex court held that since the “matriculate untrained teachers” had produced their other relevant educational certificates, they were entitled to be appointed to the post of “Assistant Teachers” in terms of the government order..
CJ: Navneet ,

THE SUPREME Court of India in its judgment paved the way for the reinstatement of “matriculate untrained teachers” of Bihar. A large number of ” matriculate untrained teachers” of Bihar’s Gaya district were sacked about 20 years ago have been reinstated by the Supreme Court on the ground that they had not made any false representation about their qualifications.

Justice L S Panta and R V Raveendran heard the case, however, the apex court cleared that the teachers would not be entitled to arrear wages during the period when they were out of service.

The Patna High court has recently reinstated them in a judgment but the Bihar government challenged the verdict in Supreme court. Dismissing an appeal filed by the Bihar Government challenging the high court order for their reinstatement, the apex court said that the state was not able to provide any evidence to substantiate the allegations that the teachers had made a misrepresentation about their qualifications for obtaining the job of “Assistant Teachers.”

“Appellants (Government) has failed to prove that the respondents (teachers) at any point of time got appointments as matriculate trained teachers by practising fraud or misrepresentation,” the bench observed in a judgement while dismissing the appeal.

In the case, Krishna Paswan and a large number of persons were appointed as Assistant Teachers on June 25, 1987. The appointments were made to two class of teachers “matriculate trained teachers” (pay scale Rs 580-860) and “matriculate untrained teachers” (Rs 535-765).

However, by an order dated June 25, 1997 the government terminated the services of the “matriculate untrained teachers” on the ground that they obtained the job by allegedly concealing the fact that they were not trained for the job.

The Patna High Court quashed the termination after noting that the office order issued by the department had clearly given direction “for appointment of trained teachers and in case of non-availability of trained teachers, untrained teachers may be appointed.”

The High Court also held that since the government order itself called for appointment of untrained teachers, the allegation of misrepresentation and fraud cannot be sustained.

Aggrieved the state preferred an appeal, but the Supreme Court concurred with the findings of the high court after noting that the government failed to adduce any evidence to buttress the charge of misrepresentation and fraud.

The apex court held that since the “matriculate untrained teachers” had produced their other relevant educational certificates, they were entitled to be appointed to the post of “Assistant Teachers” in terms of the government order.

M J Antony: Speaking different tongues
http://www.business-standard.com/india/storypage.php?autono=340630

OUT OF COURT
M J Antony / New Delhi November 19, 2008, 0:43 IST

SC points a finger at high courts for indiscipline, but a few fingers turn to itself.
On an ordinary weekday, Supreme Court judges sit in 12 court rooms, forming benches of two or three. All of them are equal in judicial power and their judgements are the decisions of the Supreme Court which should be followed by all the courts in the country. However, the fact that they are sitting in several courts with different combinations of judges on different days gives rise to a problem of coordination. It is not uncommon for one bench to pass orders which are inconsistent with those delivered by another. Sometimes, the predilections or even personal prejudices of judges create strife. The founding fathers of the Constitution did not think of the US Supreme Court model where all the judges sit together to hear cases.
The bench formation in the high courts is even more complicated with some of them having nearly a hundred judges. They may differ in their interpretation of the Supreme Court judgement or choose the one which suits their mind. This leads to judicial indiscipline, which seems to be growing. In a judgement of the Supreme Court delivered two weeks ago, Official Liquidator vs Dayanand, the court expressed its “distress at the substantial increase in the number of cases involving violation of the basics of judicial discipline. The benches of the high courts refuse to follow and accept the verdict and the law laid down by coordinate or even larger benches by citing minor difference in the facts as the ground for doing so.”
The court recalled several judgements of the past in which this norm had been emphasised, apparently in vain. Therefore, it used stronger words this time in its 100-page judgement: “Disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty are important hallmarks of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgements of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgement lay down the correct law and which one should be followed.”
The court continued: “Those who have been entrusted with the task of administering the system and who take oath to act in accordance with the Constitution have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of the judicial fraternity … If the courts command others to act in accordance with the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.”
Strong words indeed for the high courts. However, the Supreme Court itself has not been free from the fault and should look into the beam in its own eye. In State of UP vs Jeet Bisht, one Supreme Court judge last year criticised the orders passed by his brethren in the case earlier. This was not approved by the judge sitting along with him. Therefore, he wrote a separate judgement criticising his brother judge for ‘inappropriate’ behaviour. He wrote: “One bench of this court does not sit in appeal over the other bench, particularly when it is a coordinate bench. It is equally inappropriate for us to express total disagreement in the same matter as also in similar matters with the directions of the larger bench. The doctrine of judicial restraint applies in this realm. We should not forget other doctrines like judicial discipline and respect for brother judges.”
In yet another judgement of last year, a two-judge bench of the Supreme Court went against the ruling of a five-judge Constitution bench, invoking a decision of a seven-judge bench (UPSEB vs Pooran Chand). The five-judge judgement in State of Karnataka vs Uma Devi is now the authority on absorption of temporary workers. However, this ruling was straddled, as it were, by invoking the Maneka Gandhi case of 1978 by seven judges. Now the Supreme Court has asserted that the Maneka Gandhi case was not relevant to the Pooran Chand case and the Uma Devi case must be followed. “The Pooran Chand judgement should neither be treated as binding on the high courts nor should they be relied upon or made basis for bypassing the principles laid down by the Constitution bench.”
The legal profession uses a Latin phrase to describe this situation, lest ordinary people should understand it — ‘per incuriam’. It means a judicial blunder.

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