LEGAL NEWS & JUDGMENTS 04.04.2009

Malegaon blasts: HC asks police to probe into missing person

http://www.hindu.com/thehindu/holnus/002200904040911.htm

Indore (PTI): The Madhya Pradesh High Court has directed the Indore police to inquire into the disappearance of a person related to the Malegaon blasts and asked it to appear before the court with an affidavit within a month.

A bench comprising Justice A.M. Sapre and Justice Prakash Shrivastava gave the order on Friday on an application filed in this regard.

The application was filed by Dilip Patidar’s brother Ram Swaroop, who said that Dilip had been taken on the night of November 10 last year by the ATS of Mumbai police in connection with the Malegaon blasts investigations and since then his whereabouts are not known.

The court has also directed the ATS to cooperate with the Indore police in the investigations.

 

 

 

 

HC relief for HDK in two cases

http://timesofindia.indiatimes.com/Bangalore/HC-relief-for-HDK-in-two-cases/articleshow/4357241.cms

4 Apr 2009, 0144 hrs IST, TNN

BANGALORE: The high court on Friday granted relief to former chief minister H D Kumaraswamy in two criminal appeals by staying proceedings initiated in lower courts. “These are political issues,” the judge remarked before granting the stay in a defamation case filed by the government.

The state had filed the case seeking to prosecute the former CM for his `alleged’ remarks against chief minister B S Yeddyurappa, linking him to a Rs 50 crore bribe. Kumaraswamy maintained that the statements were misprinted and he had given clarifications. He had also challenged the appointment of V K Patil as the special public prosecutor in the case.

The second case pertains to a complaint by advocate N P Amrutesh, claiming Kumaraswamy, by his remarks against Veerashaiva leaders including Siddaganga mutt seer, had hurt the sentiments of the community.

 

 

 

 

HC sets aside single judge’s order on law lecturers’ recruitment

http://timesofindia.indiatimes.com/Chennai/HC-sets-aside-single-judges-order-on-law-lecturers-recruitment/articleshow/4356972.cms

4 Apr 2009, 0403 hrs IST, TNN

CHENNAI: A division bench of the Madras high court has set aside a single judge’s order quashing an advertisement issued by the Teachers’ Recruitment Board to recruit senior scale lecturers in government law colleges.

The bench, comprising Chief Justice H L Gokhale and Justice F M Ibrahim Kalifulla, said the single judge had erred in holding that the advertisement of Dec 9, 2006, was in conflict with directives of the University Grants Commission (UGC).

Disposing of a set of connected appeals in the matter, the bench directed the Teachers’ Recruitment Board to entertain the applications of those candidates who had their masters’ degree in law with specialisation in particular subjects. Applications from candidates with master’s degree in business law shall also be entertained.

The appeals from the government and some candidates were directed against the order of Justice K Chandru passed on July 22, 2008. He had found the advertisement to be ultra vires the UGC regulations and directed the state government to amend the special rules concerned.

The 16 posts were in four subjects – labour and administrative law, law of contracts, property law and crime and torts. Some candidates had approached the court complaining that those who possessed the requisite qualification had not been called for interview, while many of those called for interview did not possess post-graduate degrees in the relevant specialisation.

In his order, Justice Chandru had noted that UGC regulations made it clear that eligible candidates should possess PG degree in the relevant subject, but the special rules of the state government did not specify the criterion.

The bench, however, took the view that there was no conflict between the UGC directive and the advertisement and that both had to read harmoniously. “When the advertisement specifies particular subjects, those who have basic master’s degree in law in respect of specialisation in those subjects are expected to apply. The board cannot select persons who have m aster’s degree in law in other subjects to teach these four specified subjects. Any such interpretation or action would be bad,” it said.

 

 

 

 

 

HC tells club to pay KMC dues

http://timesofindia.indiatimes.com/Cities/HC-tells-club-to-pay-KMC-dues/articleshow/4357169.cms

4 Apr 2009, 0250 hrs IST, TNN

KOLKATA: Calcutta High Court on Friday directed Calcutta Ladies’ Golf Club at the Maidan to pay Kolkata Municipal Corporation (KMC) Rs 50,000 towards a part of outstanding licence fees and other charges by Tuesday. The civic body has claimed the amount for the club’s running a bar-cum-restaurant without trade licence inside the club tent.

The KMC has been directed to open the seal it had put on the office and the bar-cum-restaurant for non-payment of dues within 24 hours of the payment. Also, there will be a stay on the “distress warrant” issued by KMC for sealing the club after the payment is made, the court ruled.

The club had applied to the KMC for obtaining a trade licence for the year 2004-05. KMC agreed to issue it upon payment of fees and other charges. As the club did not respond to KMC’s demand, the civic authorities, last November, sent a bill of Rs 96,200 towards arrear licence fees and other charges, like water supply, garbage removal charges for the years 2005 to 2009.

The club did not pay up and did not even respond to repeated reminders by KMC. Finally, on March 24 this year, the civic authorities issued a “distress warrant” and later, sealed the club office and the bar-cum-restaurant. The club moved HC against that.

Appearing for the club, advocate A C Kar argued before Justice Tapen Sen that the club was situated on the Maidan, which belongs to the army. KMC has no control over it and could not ask for payment and compliance with any formality under KMC Act, 1980.

KMC counsel Aloke Ghosh contested such arguments, saying the club is a place of amusement and entertainment and is running a bar-cum-restaurant. To maintain such facilities, the club is using water and generating waste, which is being removed by KMC personnel, Ghosh argued. For using services provided by the civic body, the club should have to obtain a licence and comply with the formalities upon payment of requisite charges, he added.

The court, after hearing both sides, passed the interim order, which would continue till June 19. Meanwhile, both parties have been directed to file affidavits. The matter will be heard again on June 12.

 

 

 

 

HC rejects bail plea of rape accused

http://timesofindia.indiatimes.com/Cities/HC-rejects-bail-plea-of-rape-accused/articleshow/4356992.cms

3 Apr 2009, 2350 hrs IST, Nitasha Natu, TNN

MUMBAI: The Bombay high court on Friday rejected the bail of a 17-year-old boy accused of raping his eight-year-old cousin at Hanuman Nagar in Kandivli (E).

Earlier this week, TOI had reported that two of the boy’s relatives had thrashed the victim’s parents and aunt. The boy was out on interim bail then, which the victim’s family had opposed in court. After the attack, the victim’s father and aunt were hospitalised but the Samata Nagar police registered only a non-cognisable offence and not an FIR.

On Friday , the court took the incident into consideration and ordered that the boy be sent to an observation home for at least three months after which he could apply for bail.

The victim, Sujata Kadam, was severely traumatised after she was raped in December 2008 and had been undergoing counselling. On February 24 this year, the boy got interim bail from the HC and was back in the neighbourhood.

“When we opposed his interim bail, we were threatened with dire consequences by his relatives,” Sujata’s father, Somnath, said. On March 27, two of the boy’s relatives beat up Somnath near his residence. They also barged into his house and bashed up his wife and sister. “My sister’s hearing has been affected after the attack,” Somnath said.

While he was at the police station, a dozen men stormed into Somnath’s house the same day and threatened his family to keep mum. Somnath’s brother dialled the police control room and narrated the incident.

“Two non-cognisable complaints were lodged on March 27. We informed the court about both of them,” Somnath’s lawyer Dattatreya Mane said. “The court cancelled the interim bail and ordered that he be sent to an observation home. After three months, the court will decide whether he should be granted bail or not.” (Victims’ names have been changed to protect identities)

 

 

 

 

Allot symbol to Samruddha Odisha, HC tells EC

http://timesofindia.indiatimes.com/Bhubaneswar/Allot-symbol-to-Samruddha-Odisha-HC-tells-EC/articleshow/4356644.cms

3 Apr 2009, 2234 hrs IST, Siraj Mohammad, TNN

BHUBANESWAR: In response to a petition filed by newly formed regional party Samruddha Odisha, Orissa High Court on Friday directed the Election Commission and Chief Electoral Officer (CEO) to take steps to issue a symbol for the new party.

The Samruddha Odisha had, in its petition, sought a directive from the court to issue a common symbol “Nagara” to contest the coming elections. According to petitioner’s counsellor, a division bench of the court, comprising Justices I M Qudusi and Sanju Panda, issued an order on Thursday, observing, “Since the symbol has not been allotted so far, we don’t want to interfere. We expect the ECI and state CEO to follow the provisions under Section 12 of Political Parties

and Elections Symbol Reservations and Allotment Order, 1968, in taking due action.”

“We are a registered party, so had moved court seeking a directive for a common symbol to fight the elections,” party spokesman Saroj Kumar Padhi said. He said he had moved the commission on the issue, but was told that the concerned returning officers would allot it in due process. Meanwhile, candidates of the party, who had filed their nominations, have been allotted the symbol.

 

 

 

 

HC sets up seven menber panel

http://timesofindia.indiatimes.com/Bangalore/HC-sets-up-seven-menber-panel/articleshow/4356832.cms

4 Apr 2009, 0005 hrs IST, TNN

BANGALORE: The high court has set up a seven-member team for assisting the monitoring committee as well as returning officers for conduct of elections to the Advocates Association of Bangalore.

N Sathyanarayana Guptha, MS Mandanna,SN Ashwathanarayana,AG Shivanna, G Chandrashekariah, Prashanth chandra and H Kantharaja are the members of the committe.The hearing in the case will resume on April 8.

 

 

 

 

 

Delhi HC permits CFA to hold exam on Jun 7

http://www.business-standard.com/india/news/delhi-hc-permits-cfa-to-hold-examjune-7/353961/

 

Kalpana Pathak / Mumbai April 4, 2009, 1:20 IST

TIn a relief to thousands of students, the Delhi High Court has permitted the US-based Chartered Financial Analyst (CFA) Institute to hold its June 2009 examinations in India on June 7. It has, however, not passed any ruling with regard to the December 2009 exam.

“This news is a big relief for all of us. It not only saves us the anxiety and money, but we will be able to prepare for the exam in peace,” said Ravi Raja (name changed), an analyst with a domestic broking house. Raja will be appearing for his level-three exams in June, for which he paid over Rs 32,000 as fee.

The CFA Institute states on its website: “It will now permit people within India to enrol in the CFA Programme and register to sit for exams at test centres outside of India.”

Last year, the institute had stopped fresh registrations in India.

It will also open a test centre in Mumbai for its students in India. While it is yet to decide the location of its Mumbai centre, the number of students taking up examination this year could be lower than last year. The institute said that over 8,400 Indian students have registered for the June exams.

“I did not enrol for examination this year, as I was not certain if it would be held in India. I could not have put myself through all the anxiety of preparing for the exam and making travel arrangements to appear for the same,” said Navin Shinde (name changed), who works for a Mumbai-based equity firm. Navin had travelled to Bangkok last year to appear for his level one examination.

Meanwhile, students have already started applying to the institute, requesting a change in test centre. The institute on its website said: “Any June 2009 candidates from India who did not receive the April 2, 2009, email asking if they would like to take the CFA exam on June 7, 2009, in Mumbai should contact us to request a test centre change.”

The institute is embroiled in a legal battle with the technical education regulating body — All India Council for Technical Education (AICTE). The institute had filed a writ petition before the High Court in May 2007, challenging the AICTE’s decision prohibiting the CFA programme in India.

In December 2007, the high court had dismissed the CFA Institute’s petition against the AICTE, stating that the institute should seek AICTE’s approval to operate in India. Following the order, the institute decided to approach AICTE in January 2008 to seek approval for its India operations.

Simultaneously, it had appealed to the division bench of the Delhi High Court against the December 2007 order.

 

 

 

 

 

No ban on retired police personnel forming Association: HC

http://www.hindu.com/thehindu/holnus/004200904032188.htm

Chennai (PTI): The Madras High Court on Friday held that there was no ban on retired police personnel forming an association.

Dismissing a petition by K Chandru, an advocate practising in the High Court, seeking to declare as unlawful ‘Kavalar Nala Sangam’ (Police Welfare Association) formed by retired personnel of the Tamil Nadu police force, the First Bench, comprising Chief Justice H L Gokhale and Justice F M Ibrahim Kallifulla, said, “no direction as sought for in the writ petition can be granted”.

Referring to another prayer by the petitioner, seeking an interim injunction to restrain the association from conducting meetings, dharnas and procession in the state, the Bench noted that permission to take out a procession by members of the association had been declined.

“In these circumstances, there is no need to entertain the prayer,” the Judges said and dismissed the petition as ‘withdrawn’ after the advocate sought permission to withdraw the petition.

The petitioner contended that two laws, one in 1922 and another in 1966, restricted policemen from forming associations and provided for a penalty.

 

 

 

 

No need to ban retired cops’ assn: HC

http://timesofindia.indiatimes.com/Chennai/No-need-to-ban-retired-cops-assn-HC/articleshow/4356978.cms

4 Apr 2009, 0350 hrs IST, TNN

CHENNAI: The provisions of two legislations aimed at curbing disaffection among the police and curbing their right to form associations were not applicable to retired police personnel, and the courts cannot entertain a plea to ban a welfare association for retired policemen, the Madras high court has ruled.

K Chandru, a city lawyer, had approached the high court with a writ petition seeking a direction to take legal steps to declare illegal the Kavalar Nala Sangam’, an association floated by a retired assistant commissioner of police for former uniformed personnel.

In his petition, Chandru had recalled the unsavoury incidents in the high court complex on February 19, when lawyers, judges and court property were attacked by the police. He contended that the police excesses on that day amounted to a mutiny by an armed force and action had to be taken against the offenders.

In these circumstances, a retired assistant commissioner and a few others had started an association. They had conducted a demonstration on March 2 against lawyers in Chennai, even though no permission had been obtained for the protest. “This shows the activities of the association are sponsored by the police department,” he alleged.

Citing provisions of a 1922 law against incitement to disaffection among the police and a 1966 law restricting their right to form associations, the petitioner wanted the authorities to take steps to ban the association.

However, a division bench comprising Chief Justice H L Gokhale and Justice F M Ibrahim Kalifulla said the court was of the opinion that the provisions of the enactments cited did not get attracted to retired police personnel. “Even in the provisions, there is no ban on retired personnel forming an association. In these circumstances, no direction as sought in the writ petition can be granted.”

 

 

 

 

 

FAQ: The Supreme Court’s Beard Judgement

http://blogs.outlookindia.com/default.aspx?ddm=10&pid=1676&eid=5

Sundeep Dougal

I Background 

1.1. Is it true that a ‘restriction has been imposed on beard and burqa’ because of the SC ruling it as a sign of the Taliban?

No such restriction has been imposed or even suggested. There is a controversy because of certain reported remarks of a Supreme Court judge that are not part of any iudgement or ruling. But even those remarks (a) do not imply the above and (b) whatever the judge is reported to have said is not part of any court record and we only have sketchy PTI reports to go on [See here and here] about what the judge said and in what context.

1.2. So what is the origin of this controversy? 

It started with a Madhya Pradesh schoolboy Mohammed Salim, studying then in Class X at Nirmala Convent Higher Secondary School, who was expelled from school in December last year, apparently because of  “keeping a beard against campus rules”. The rules of the school — a government-recognised minority institution — say all students must be clean shaven.  Salim first moved Madhya Pradesh High Court but it dismissed his plea saying the school had the right to frame its own by-laws as a minority institution. He then moved the Supreme Court.

1.3. What were the grounds for asking the rules of the school to be changed?

Salim’s counsel, former Delhi High Court judge B.A. Khan cited Article 25 of the Constitution — which guarantees all citizens the fundamental right to freedom of conscience and free profession, practice and propagation of religion — and argued in front of a two-judge bench on March 19 that the right to keep a beard was a fundamental part of a Muslim’s religion.  He contended that the school’s rules were therefore in violation of his client’s fundamental right to religion. The petition also charged that the school rules were discriminatory as it allowed Sikh students to keep beards and sport turbans, but, in Salim’s case, had insisted that he either follow the rules or leave.

2. Supreme Court’s Response

2.1. What was the court’s response? 

The court directed justice Khan to find out and report if the school was government-aided and adjourned the case till March 30

2.2 Why?

The Supreme Court had earlier held that minority aided schools could be considered state institutions under the Constitution. Fundamental rights lie only against the state and its functionaries, not against private citizens or institutions. On the other hand, a private un-aided minority institutes has the fundamental right under Article 30 — “the right of minorities to establish and administer educational institutions”

2.3 So what was it? What did the courts rule?

It was apparently not a government-aided minority institute. The court dismissed the petition. Please note, this is all the Supreme Court order says: 

Upon hearing counsel the Court made the following 

ORDER

The special leave petition is dismissed.

3. The Controversy

3.1 So where is the confusion? How did the controversy start?

We have the PTI reports [See here and here], according to which there was an exchange of words between the petitioner’s lawyer, retired High Court justice BA Khan, and Justice Markandey Katju, speaking for the Supreme Court Bench headed by Justice Raveendran. Justice Katju is reported to have said, inter-alia:

…secularism could not be overstretched and Talibanisation of the country could not be permitted … We don’t want to have Talibans in the country. Tomorrow a girl student may come and say that she wants to wear a burqa. Can we allow it? … [R]eligious beliefs could not be overstretched. “I am [a] secularist. We should strike a balance between rights and personal beliefs. We cannot overstretch secularism.”

The same reports also show the following exchange:

Salim’s counsel Justice (retired) B.A. Khan argued that sporting a beard was an indispensable part of Islam.

“But you [Justice Khan] don’t sport a beard,” Justice Katju told counsel.

The sequence of events is not clear, but it would seem, at least to this writer, that Justice Katju got carried away at retired justice BA Khan’s harping on the fact that “keeping a beard is mandated (FARD) by Islam”.

3.2 So is that really the case?

No. Beards do not find any mention in the Quran. The law books describe the injunctions about keeping a beard as a Sunnat and not Fard.  Following a sunnah is considered good for a Muslim, but it is not obligatory. For every mufti who says shaving is ‘haraam’ one can find another who would say it is only ‘makruh’ but not ‘haraam.’ And as a Muslim you are free to follow either of the two as your own conscience urges. But to come back to the topic, the question of beards should not even have come up as 2.2 above makes clear and the order seems to be relying only on Article 30:

The court then said a minority institution had its own set of rules and rights provided by Article 30 of the Constitution and the same could not be breached by any person. “If there are rules, you have to obey. You can’t say that I will not wear a uniform I will [wear] only a burqa,” the Bench observed.

3.3 So why did Justice Katju make the remarks he did in 3.1 above?

We do not know. We can only speculate.  We have heard some of the speculations [For example: here and here]. I hold no brief for Justice Katju but, because his remarks have earned adequate censure, it is time to speculate some more:

Is it possible that Justice Katju was reminded of the Taliban because they are  the only prominent group in the news who insist that Musllm men should not shave their beards and that Muslim women should necessarily wear a burqa and impose these conditions by force? Perhaps he was just irked at the plaintiff’s advocate — also a retired justice of the HC — repeatedly and insistently making statements that he felt were not correct?

While almost all would agree that he should have stopped with issuing the order and providing the legal basis for it, and while the exchange between the counsel and the learned judge seems to have got rather pointed and personal and should have been avoided, it would be a bit of a stretch to insist that Justice Katju meant to imply that any bearded man or a burqa-clad Muslim woman is a Taliban or Taliban-supporter. Keeping his position in mind, the learned judge would perhaps have done well not to have made such statements that are liable to be misconstrued and misinterpreted, particularly because of reporting problems — which is what seems to have happened. 

4. Legal Angles

4.1 What are the legal ramifications of Justice Katju’s remarks?

None whatsover. It should be borne in mind that there is routinely a lot of give and take between judges and counsel in the supreme court, especially given that counsel in this case was an ex-colleague on the (HC) bench. Most significantly, the order of the Supreme Court does not consist of “the reported remark about Taliban”. Therefore it cannot even be considered as obiter dicta.

4.2 Do the Courts have any business deciding what constitutes the basics or fundamentals of a religion? Has Justice Katju not ended up legislating on religion?

No — see 3.2 and 4.1above. Besides, Justice Katju would not have ‘legislated religion’ from the bench, were it not for the fact that the plaintiff demanded an exemption from the customary rights of an unaided minority institution.

It is the plaintiff that sought to test and push the boundaries of the constitution, and the judge’s ruling was judicially conservative, stare decisis in nature. 

Besides, since the petitioner approached and invoked the power of the court to protect something which he claimed repeatedly, insistently, as a mandatory part of his religion, it could well be argued that the court would be obliged to examine the question whether that really is the case or not.

The plea was not to protect the right to keep a beard as a basic human freedom of an individual but that it was so mandated by religion. Any court, while adjudicating, shall necessarily address itself to the prayer and the grounds adduced in support of the prayer. But, in any case, it would appear that the two-judge bench did not really get into Article 25 and stayed largely focussed on Article 30. {cf, 2.1, also see here) once it determined that it was an unaided institute. 

This order pertains to the rights of a minority institution whether it can impose a code that includes dress and beard, the order does not deal with the right of an individual Indian citizen to wear what he or she likes or keep a beard or not.

The rest all seems to be an informal — and avoidable — exchange between a sitting judge of the SC and a retired judge of the HC, appearing as a senior advocate for the petioner, after the order had been passed and would seem to have no bearing on the case.

4.3 By the way, why are the Sikhs treated differently?

There are two issues here. One, for the Sikhs, kes, unshorn hair, has very much become a part of their accepted identity. It is also one of the five basic features which determines a khalsa — kachhaa, kanghaa, karaa, kes and kirpan.  Two, the stare decisis principle represents judicial conservatism–it won’t take away any rights of Sikh boys  already enshrined in law and in practice, but it will hesitate to add new rights to newer groups on that basis.  Incidentally, countries like France, when imposing their recent laws, have not allowed any exemption to the Sikhs as well – but that is a different debate.


With many thanks to Mohib Ahmad, KV Bapa Rao, Professor CM Naim, Arshad Alam, Prashant Bhushan, AM Khan and others for useful questions, discussions, debates, insights and clarifications. The above of course does not claim to represent their views and they share no responsibility for my lapses  — subject to later corrections by those more informed .

All constructive engagement with this is welcome.

 

 

 

 

PIL questioning citizenship of Ghani Khan’s brother

 

http://www.indopia.in/India-usa-uk-news/latest-news/540243/National/1/20/1

Published: April 3,2009

 

 

Kolkata , Apr 3 A PIL was moved before the Calcutta High Court today seeking an enquiry into the inclusion of Abu Naser Khan Chowdhury, who had sought to be the Congress candidate from the North Malda Lok Sabha seat, in the voters&aposlist despite his alleged Swiss citizenship.

A division bench presided by Chief Justice S S Nijjar questioned the locus standi of the petitioner and asked his counsel to explain his position when the matter came up for hearing again.

Chowdhury, the brother of late Union minister A B A Ghani Khan Chowdhury, was pipped by his niece Mousam Benazir, who filed her nomination on Congress ticket from the seat during the day.

The petitioner sought an enquiry into how a foreign national&aposs name could be registered in the voters&aposlist.

Source: PTI

 

 

 

 

JAC to file PIL for probe into killing
http://www.assamtribune.com/scripts/details.asp?id=apr0309/at06

Staff Reporter
 GUWAHATI, April 2 – The Journalists Action Committee (JAC) is going to file a Public Interest Litigation (PIL) in the Gauhati High Court demanding a high level inquiry into the killings of journalists in the State in the last two decades including Anil Mazumdar, who was the executive editor of Aji. Condemning the lackadaisical attitude of the government to identify the killers of late Mazumdar, the JAC on Thursday expressed the fear that this case would also go the same way as the nearly 20 other cases of killings of scribes across the State that have remained unresolved till date.

It needs to be mentioned here that the JAC had served a seven days ultimatum to the government to nab the killers of late Mazumdar and had taken up a series of programmes to protest the increasing attack on working journalists. Several organisations representing the journalists’ fraternity had extended support to the JAC.

Today around 150 scribes from across the State assembled in the capital city to participate in a protest march organised by the JAC. The procession started from Guwahati Press Club here.

In view of the unconcerned attitude of the government towards the killing of journalists, the JAC has decided to approach the President of the country.

In the coming days, the JAC will submit a memorandum to Pratibha Patil demanding justice.

The JAC is insisting that the killers of journalists should be identified immediately and adequate compensation should be given to all the affected families.

The JAC is pressing for a high level inquiry into all the killings so that the motive behind the killings is known to everyone. “The people of the State have the right to know whether the killings were journalism related or carried out purely on personal ground,” said a functionary of the JAC.

 

 

 

 

CJI announces 60 new CBI courts across India

New Delhi, Apr 2 (ANI): The Chief Justice of India K. G. Balakrishnan on Thursday announced to set up 60 new Central Bureau of Investigation (CBI) courts across the country.

“A recent survey shows 9000 cases involving the CBI are pending in various courts. After keeping that on mind, 60 new CBI courts will be set up across the country,” Balakrishnan said while delivering the 10th D. P. Kohli Memorial Lecture here.

The lecture was based on the “Criminal Justice System- Growing Responsibility in the face of Challenges in modern Society”.

The lecture is organized annually by the CBI since 2000 in honour of its founder-director (Late) D. P. Kohli, who headed the Special Police Establishment and the agency from 1955 to 1968. (ANI)

 

 

 

 

 

CJI for ‘political will’ to revamp criminal justice system

http://news4u.co.in/?p=16449

Published on April 3, 2009 by admin

News4u-News Desk-New Delhi, Apr 3- Chief Justice of India K G Balakrishnan ,said that “political will” was essential to bring reforms in the criminal justice system in view of the growing threat to national security and ensure the country’s economic development.

“The larger agenda of criminal justice reforms touches on many more issues-such as better training for police personnel, a clear separation between the investigation and prosecution functions and continuous education for lawyers and judges.

It is a big task and it can only be performed if the necessary political will exists for the same,” he remarked while delivering the 10th D P Kohli Memorial lecture named after the founder director of the Central Bureau of Investigation (CBI).

Justice Balakrishnan said that if the failures of the criminal justice system are allowed to continue they will only encourage offenders to commit more crimes and correspondingly prompt acts of vigilante justice.

“The emerging crime scenario seriously threatens national security and economic development, warranting joint strategy between Union and states on the basis of clear principles, priorities and objective.

An efficient yet fair criminal justice system is an essential requirement for a liberal democracy and these issues should be at the forefront of the agenda of all political parties,” he said.

The Chief Justice deplored the clamour in certain quarters for denying principles of natural justice and fair trial to persons accused of heinous offence like terrorists and said even such persons are entitled to all protections of law provided in a liberal democracy like ours. “This continuing emphasis on the rights of the accused is a natural feature of any liberal democracy where the individual is given protections against the criminal law machinery controlled by the state.

However, in an era of widespread organised crime, terrorist attacks and ethnic conflicts there are often calls made for diluting these protections. This is indeed a dangerous trend, since a partial concession of the components of the ‘Right to fair trial’ could be the precursor for more concessions later,” he said.

Observing that the police in the country had a negative image among the public, the Chief Justice justified the recent amendments to the CrPC which granted discretionary powers to the investigating officers in cases which entailed a maximum punishment of seven years.

“The legislative intent behind giving this discretionary power to the police is to reduce the high incidence of arbitrary and unnecessary arrests that take place in our criminal justice system,” he said.

He pointed out that in most cases it the poor who are arrested and subjected to custodial violence.

 

 

 

 

Polling booths will be disabled-friendly, EC assures HC

http://www.hindu.com/thehindu/holnus/002200904031211.htm

Mumbai (PTI): The Election Commission has assured the Bombay High Court that the polling booths during the coming Lok Sabha elections would be disabled-friendly.

The EC would comply with the Supreme Court’s guidelines in this regard, it told the High Court on Thursday.

The High Court has now sought an affidavit — in a week — to this effect.

The Division Bench of Chief Justice Swatanter Kumar and Justice D.Y. Chandrachud was hearing a Public Interest Litigation (PIL) filed by Nilesh Singit and Raju Waghmare of Disability Rights Group.

As per the petitioners’ lawyer Mallika Iyer, the guidelines framed by the Supreme Court in October 2007 make it mandatory to provide ramps so that disabled can easily enter the polling booth.

The EC is also contemplating providing braille-enabled electronic voting machine.

Guidelines require training for the election staff so that they understand the plight of disabled voters and provide proper assistance to such voters.

Election Commission has to publish advance notice through the print and electronic media regarding the facilities that will be provided for disabled voters.

 

 

 

 

 

Rlys to back out of med-aid plan, HC says no

http://timesofindia.indiatimes.com/Cities/Rlys-to-back-out-of-med-aid-plan-HC-says-no/articleshow/4352189.cms

2 Apr 2009, 2358 hrs IST, TNN

MUMBAI: A week after agreeing to set up a pilot medical aid project at Dadar station for rail accident victims, the railways on Thursday did an about turn. It filed an application in Bombay high court clarifying that the go-ahead for the project did not have its “consent”.

A division bench of Chief Justice Swatanter Kumar and Justice Dhananjay Chandrachud expressed “anguish” at the attitude of the railways.

The court rejected the plea and pointed out that the divisional railway managers as well as general managers of Central and Western Railway were present in court the day the order was passed.

Advocate J Cama, counsel for the petitioner who had filed a PIL on the issue of lack of timely medical aid to rail accident victims, alleged that the application showed that the “railways was not interested in saving lives”.

The court last week directed railways to set up a pilot project at Dadar station, which would include a medical room, round-the-clock medical attendant, a doctor on call, upgraded first-aid boxes, ambulances and other facilities. The railways claimed that they could not have consented to the plan as some of the measures like appointment of medical officers could only be done after sanction from the Railway Board.

 

 

 

 

 

Corrupt Central Information Commisioner M. M. Ansari

http://sanesociety.wordpress.com/2009/04/04/corrupt-central-information-commisioner-m-m-ansari/

By sanesociety

Hello Reader,

 

I had a hearing at CIC for my appeal and the IC was shri M. M. Ansari. I had a very bad experience with this information commissioner and want to appeal/review further. Please oblige me with your RTI expertise.

 

1. Is there any time bar of appealing against the Decision of a central Information commissioner in High Court. I read The Central Information Commission (Management)Regulations, 2007 and didn’t find any mention of High Court appeal. Where can i find guidelines regarding appealing in the High Court.
 
2. In the Central Information Commission (Management)Regulations, I read that against the Decision of the Central Information commissioner an appellant can write to Chief central Information Commissioner for “appeal or review” of the decision u/s 23(2). Is it mandatory that we have to approach the chief Central Information Commissioner first, before approaching the Honb’le High Court? If so, can anybody provide me with the sample appeal/review petition?
 
3. The Central IC M. M. Ansari has not followed any judicial discipline in his order (
http://cic.gov.in/CIC-Orders/MA-26032009-05.pdf).
Breif facts of the case are:
a) The event, a Round table conference with Men’s Group was conducted on June 25, 2008.
b) The present RTI was filed on June 26, 2008.
c) The CPIO with Women and Child Development ministry (WCD) replied to above RTI on July 28, 2008.
d) The first appeal with Appellate Authority was filed on August 12, 2008.
e) The Appellate Authority replied on August 22, 2008.
f) The 2nd Appeal with CIC was filed on November 11, 2008.
g) After receiving the copy of 2nd Appeal with CIC the WCD ministry supplied some documents via a letter dated December 16, 2008 which was received by me on December 23, 2008.

At the CIC hearing, The IC (Mr. Ansari):
 
(i) He has not mentioned in his order about neither the first date of hearing (23-02-09) when the respondent deliberately avoided their presence nor about the proceeding of said date.
 
(ii) In the first ex-parte hearing on 23-02-09, the IC starts arguing that how could we seek info based on newspaper reports. I want to ask what are the means of knowledge to the citizens, Except media, that what a ministry is doing? The news was published and we asked the info based on that. If there was no such happenning, the PIO or first appellate authority in their respective replies must have denied that there is no such event took place on that date. The IC further said you should have filed for inspection of records as you demanded vague information. How could the copies of the official agenda, the suggestions received from various stake-holders and the list of invitees/participants of a round table conference are vague information?
 
(iii) We explained our grievances and it was decided that at least the reason for 6-months delay in providing the information will be asked.
 
(iv) In the second hearing on 26-03-09, IC just ignored our repeated request to ask the respondent about the reason of such a long delay in providing the partial information. Mere reply of PIO and first appellate authority (as in para 3 of decision) can not be equated to providing information.
 
(v) IC himself started defending the respondents that the suggestions and representations received are third party information and PIO has already obliged the appellant by providing the same. How could public comments/suggestions received by a ministry on some review of law could be termed third party information and that is by the IC himself?
 
(vi) Is the copy of second appeal forwarded to the CPIO and first appellate authority, an another chance to the respondents to provide the information? On an RTI filed on 26th june 2008, and after receiving the copy of second appeal for filing their counter, if the CPIO provides some junk & misleading info on 23rd Dec 2008, and even then IC is not asking the reason for delay, is it not corruption in CIC?
 
(vii) When we asked the IC, who is going to fix the accountability, you are just saying that “you have got the information , otherwise under official secrets act you would have not even got this”. When I asked, do you have any powers to impose penalty u/s 20(1) or not, he said “_NO_, you challenge and I (ansari) will defend it”.
 
(viii) In para 4, The reply that ministry is in consultation with statke holders on the suggestions received itself says that info is available but not provided. The appellant had not demanded any action taken report on the suggestions received but just the copy of the suggestions. Why the info at first instance was not given even if the infor was available. How there is “No denial of Information”?
 
(ix)Para 6:
> The CPIO replied and furnished partial information and for the remaining information the appellant was informed that the suggestions received from various stake-holders were being examined by the respondent in consultation with the National Commission for Women.
Contention: Without verifying, where the CPIO provided info? He just said we are discussing? If the info is not with the ministry and it has been forwarded to the National Commision for Women (NCW), why the CPIO didn’t forwarded the application to NCW as per section 6(3) of RTI, after providing the info the ministry has?
 
> Clearly, the complete information, as asked for, was not available. Hence, it could not be furnished.
The IC is pronouncing decisions based on presumption even when there is no such reason given by either CPIO or first appellate authority that the info is not available or not prepared at all. Can IC not ask the PIO, why after 6 months of the consulation program, the meetings of minutes are not available? Under section 4(1)(b)(viii) every public authority need to make meeting of minutes.
 
(x) The IC had not even ordered the respondents to invite us for inspection of records for remaining information. Why we need to file a separate application again for the same, as you all could see from his decision?
 
(xi) How IC can comment like “Ministry has other works to do, like food programs for children etc…”? IC ansari had crossed his jurisdiction. The way Ansari was protecting the respondents, I smell a foul play here and I do not see any recourse but to seek justice from the Honb’le High court.
 
(x) Last para:
> As regards the appellant’s allegations against the respondent for not drawing up the formal minutes in respect of the Consultation programme, the appellant is advised to approach the competent authority with a plea to do the needful as per the established practices.
Even on request why ansari not ordered the respondents to prepare formal minutes of meetings and provide to the appellant? Does an IC has power of, require the public authority to take any such steps as may be necessary to secure compliance with the provisions of the RTI Act:
1. by making necessary changes to its practices in relation to the maintenance, management and destruction of records u/s 19(8)(a)(iv) and
2. by providing it with an annual report in compliance with clause (b) of sub-section (1) of section 4 u/s 19(8)(a)(vi);
 
I have other appeals pending to be heard on 16-04-09, against same respondents and with the same IC ansari. Ansari is a corrupt man and as per the Honb’le Suprme court justice Justice Markande Katju “Corrupt should be hanged from lamp post”. We need to hang Ansari, help me. It was a shocking first experience for me.
 
Please help me by suggesting, On what law points (w.r.t the above mentioned CIC decision) I can challenge ansari’s decision in the Honb’le HC. Please post our vews here.

 

 

 

 

 

Tribunal sides with transferred officials

http://timesofindia.indiatimes.com/Cities/Tribunal-sides-with-transferred-officials-/articleshow/4357583.cms

4 Apr 2009, 0530 hrs IST, Dhanesh Patil

THANE: As a development in the matter of transfer of the two officials from Thane police, who approached the Maharashtra Administration Tribunal (MAT) to stop their transfers, the body has accepted the case and favored the duo. The tribunal is said to have ruled in their favour as there is no strong issue against both of them.

It may be recalled that the Thane Police Commissioner ordered the posting of some officers from the force in January. To challenge this, two of officers S H Pawar from Kalwa police station and B G Kulkarni from Naupada police station asked MAT to stop it. Pawar, who is working with Kalwa Police station as an Additional Commissioner of Police, had already got a stay on his posting about a fortnight ago.

Despite the tribunal ruling in the officers’ favour, Police Commissioner Anil Dhere denied this development. Dhere said, “We have not received an official letter from MAT about the posting of Kulkarni and hence we are now waiting for the copy. Once we received the copy, we will again take him for his job”.

The Thane Police Commissioner ordered the posting of 12 police officials. As a challenge to this order, Pawar and Kulkarni, who is working with Senior Police Inspector asked the MAT to stop their posting.

The list included three Additional Commissioner of Police, out of this one was S H Pawar. The other two, Rashmi Karandikar and Smita Pathak from Special Branch, were also posted elsewhere. A day after the posting order, Pawar asked MAT to stop his posting as there is law regarding the posting. The law states that if an official has less than a year to go before retirement, they cannot be posted.

 

 

 

 

 

Cops to approach tribunal over transfers

http://timesofindia.indiatimes.com/Pune/Cops-to-approach-tribunal-over-transfers/articleshow/4357036.cms

4 Apr 2009, 0153 hrs IST, Asseem Shaikh, TNN

PUNE: The sudden transfer of 101 policemen in Pune, as per the guidelines of the Election Commission, to keep them away during the Lok Sabha elections to be held on April 23 has irked the transferred personnel as well as the police

top brass.

Many posts in the police stations and important branches of the police in Pune have fallen vacant as 94 from the Pune police commissionerate and seven from the Pune rural police were transferred in the state wide reshuffle.

The transfer order of 280 inspectors and 195 assistant inspectors was issued by the additional director general of police Ahmad Javed and special inspector general of police Suresh Kakkar on March 1.

As many as 25 police officers from Pune are planning to challenge their transfer before the Maharashtra Administrative Tribunal (MAT) on Monday.

Terming the transfer as violation of the Election Commission’s guidelines, lawyer Poonam Mahajan, who is representing the policemen before the MAT, said: “The office of state director general of police at Mumbai had hastily issued the transfer orders without any application of mind.”

“Police officials, who are working in side branches’ and who are not directly or indirectly related to the elections, have also been transferred without any reason,” Mahajan said.

“Several officials who have not completed their tenure of six years were transferred even before they could complete three years on a particular post. Officials, who are not domiciles of Pune, are also transferred,” Mahajan said.

The police officials both from Pune and Pune rural, who have been transferred to far off places like Amravati and Nagpur, said the transfers were unjustified and they fear that the situation may create law and order problem in the state as there are just 20 days left for the elections.

When contacted on Friday, joint commissioner of police (law and order) Rajendra Sonawane said: “We have relieved 19 inspectors. So far, 12 inspectors and two assistant inspectors, who have been transferred to Pune, have reported for duty at the commissionerate on Friday.”

Sonawane strongly refuted the claims that the transfers would create law and order problem in the city. “The new officers will adjust themselves and will get acquainted with the situation before the elections. They will soon understand the topography of the concerned areas wherever they are posted. The police are known for accepting all kinds of challenges.”

Sonawane avoided to comment on several police officials moving the MAT to seek a stay order on their transfer.

 

 

 

 

 

JUDGMENTS

 

 

Nair Service Society vs. Dr. T. Beermasthan & Ors dated 2009-03-30

http://legalapproach.net/case_details.php?jid=1411

 

LASC 2009 C 3001

 

REPORTABLE

 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1991 OF 2009

[Arising out of SLP(Civil) No. 20419 of 2008]

 

Nair Service Society     …….Appellants

Versus

Dr. T. Beermasthan & Ors        ……Respondents

 

And

CA No. 1993 of 2009 [@ SLP(C) No. 29345 of 2008] CA No. 1994 of 2009 [@ SLP(C) No. 30967 of 2008] CA No. 2000 of 2009 [@ SLP(C) No. 2674 of 2008]

With

CA No. 1992 of 2009 [@ SLP(C) No. 21139 of 2008]

CA No. 1995-1999 of 2009 [@ SLP(C) Nos. 439-443 of 2008]

 

J U D G M E N T

MARKANDEY KATJU, J.

 

Civil Appeal Nos……….of 2009 [@ SLP(C) Nos. 20419, 29345, 30967 & 2674 of 2008]

 

1.      Leave granted.

2.         These appeals have been filed against the judgment dated 23.5.2008 passed by the Division Bench of the Kerala High Court in WP No. 1697 of 2007. The appellant society in the first of the appeals is an incorporated body rendering social service. It purports to espouse the cause of merit in appointments in government service and public sector undertakings. The appellant in the second of the appeals (not a party before the High Court) is a general category candidate whose chance of selection and appointment as a medical officer was adversely affected by the decision of the High Court. The appellant in the third of the appeals is the Kerala Public Service Commission, which is entrusted the task of executing the recruitment and selection process. The appellants in the fourth of the appeals (not parties before the High Court) are candidates included in the rank list prepared and published by PSC for different posts in various departments. According to them they would have been advised and appointed but for the interpretation placed by the High Court in its decision in WA No. 1697 of 2008.

3.         Heard learned counsel for the parties and perused the record. The writ appeal was filed before a division bench of the High Court against the judgment of a learned Single Judge of the High Court in W.P. (C). No. 25171 of 2006-V dated 10.4.2007.

4.         The point that arises for decision in this appeal is whether a correct construction has been placed on Rules 14 to 17 of the Kerala State & Subordinate Services Rules, 1958 (in short ‘the Rules’) by the Kerala Public Service Commission (in short the P.S.C.), while selecting candidates for the post of Medical Officer (ISM).

5.         The brief facts of the case are that the Kerala Public Commission invited applications for appointment to the post of Medical Officer (Indian System of Medicine) under the Kerala Government, by the notification published in the Kerala Gazette dated 14.10.2003. The rank list was published on 31.12.2005. The writ petitioners were candidates and included in the supplementary list of Muslims at rank Nos.17 and 18. According to the writ petitioners, 250 candidates were advised, out of which 198 were from the main list and 52 from the supplementary lists. In that process, only 28 Muslim candidates were advised. It is alleged that going by Rules 14 to 17 in Part II of the Rules, 30 candidates should have been advised from the Muslim community. If two more Muslim candidates had been advised, the writ petitioners would have got appointment. Feeling aggrieved by the omission of the P.S.C to advise them, the Writ Petition was filed by the two writ petitioners, seeking the following reliefs:

“(i) to issue a writ of mandamus directing the 3rd respondent to issue advice memos to the petitioners.

(ii) to issue a writ of mandamus directing the 3rd respondent to set right the errors and irregularities in following the principles of communal rotation and reservation in advising candidates from Ext.P1 ranked list.”

6.         According to the writ petitioners, rank Nos.28, 50, 82 and 111 in the main list were Muslims and their turn had arisen under the open competition turn. However, they were advised for appointment in the reserved vacancies and to that extent Muslim candidates in the supplementary list lost their chances.

7.         According to the Public Service Commission, the candidates were advised strictly in accordance with the Rules. The rank list was published by the P.S.C. on 31.12.2005 by including 252 candidates from the main list and 107 from the supplementary lists of various reservation candidates. Upto 24.11.2006, 268 candidates were advised from the ranked list against the fresh vacancies and the non-joining duty vacancies reported by the appointing authority. It was also stated that the last open competition candidate advised was rank No. 213 and the last Ezhava candidate advised was rank No.226 in the main list. It was further stated that the last Muslim candidate advised was rank No.12 in the supplementary list for Muslims. According to the P.S.C., the turn of the writ petitioners did not arise for advice, Rank No.8, who belongs to the Muslim community was advised under the open competition turn, and other Muslim candidates included in the main list were advised under the Muslim reservation turn.

8. The P.S.C filed an additional counter affidavit dated 1.3.2007 before the High Court. In the said counter affidavit, the details of the rotation were given. It was stated therein that the recruitment to the post of Medical Officer (ISM) ended at Main Rotation VIII 39 OC. For the present selection, the rotation started at MR VIII 40 OBC and ended at MR XI 7 OC while working in the rotation for the 267 fresh vacancies reported. As on 13.2.2007, 287 candidates were advised including 20 NJD vacancies. The details of Muslim candidates advised are also given. Rank No.8, who was a Muslim candidate, was advised under the open competition turn. The last Muslim candidate advised from the main list was rank No.252. From the supplementary list, 14 Muslim candidates were advised. The P.S.C emphatically refuted the contention of the writ petitioners that rank Nos. 28, 50, 82 and 111 should have been advised under the open competition turn. It is asserted that the advices were made strictly in accordance with Rules 14 to 17 of the Rules.

 9.        The learned Single Judge, who heard the Writ Petition, allowed it, holding that the method adopted by the P.S.C. was not in accordance with the Rules. He held that in view of Rule 14(b) of the Rules, the members of Scheduled Castes, Scheduled Tribes and Other Backward Classes are entitled to be considered for appointment under the open merit quota and if any candidate belonging to those communities is appointed in the open merit quota, the number of seats reserved for the said communities shall not be affected by the same. The learned Judge held that other provisions of Rules 15 to 17 should be read subject to Rule 14(b). Based on that finding, the learned Judge directed the P.S.C to invoke its power under Rule 3(c) of the Rules and modify the advices appropriately, so that the Muslim candidates who got appointment under the reservation quota, but who would have got appointment under the open competition quota, are adjusted against the open competition quota and in their place, other Muslim candidates are advised under the reservation quota. Aggrieved by the judgment of the learned Single Judge, the P.S.C filed the Writ Appeal No. 1697 of 2007.

10.       According to the P.S.C., the unit of appointment for working out rotation is 20, as provided under Rule 14(a). It was alleged that the learned Single Judge failed to comprehend the impact of the said provision. The P.S.C is bound by Rule 14(a) in working out the communal rotation. It was also contended that none of the affected candidates was impleaded in the Writ Petition and for that reason alone, the Writ Petition should have been dismissed.

11. During the pendency of the Writ Appeal, notice was taken out to all affected persons by publishing notice dated 9.10.2007 in all editions of Kerala Kaumudi daily dated 22.10.2007, published from Kerala. In the Writ Appeal, the Nair Service Society got itself impleaded as additional 7th respondent. It supported the contentions of the P.S.C in the appeal. However, the Division Bench of the High Court disposed off the writ appeal broadly upholding the judgment of the learned Single Judge. The High Court held that where the number of vacancies reported is more than 20, the unit of appointment shall be the number of vacancies reported and not 20. It held that if reservation is applied to a 20 point roster, as done by P.S.C., it will result in denial of reservation to eligible candidates as per the percentage of reservation set apart for them and result in candidates under merit quota cornering more vacancies than what was due to them at the expense of communities eligible for reservation.  The division bench held that Rule 14(a) would apply only where vacancies reported are less than 20. The division bench issued the following directions :

“The three advices made on 1.2.2006, 17.4.2006 and 17.7.2006 of 161, 30 and 40 vacancies respectively shall be reopened notionally. The turns of the candidates shall be re-arranged, taking the vacancies as three blocks of 161, 30 and 40 respectively and the three advice lists shall be notionally rearranged, as provided in the third proviso to Rule 14(c). Every alternative vacancy in the three blocks of vacancies shall be firstly allotted to open competition candidates and the remaining vacancies to the communities eligible for reservation, subject to the rule that reservation in a particular year shall not exceed 50%. As a result, if it is found that any of the candidates, eligible for reservation, were though entitled to be advised but not actually advised, they shall be advised for appointment by the P.S.C to the appointing authority. For the purpose of seniority, the advice of the candidates so made will take effect only from 10.4.2007, the date on which the learned Single Judge rendered the decision. It is clarified that the advices and the appointments of candidates already made by the P.S.C as per the above mentioned three advices shall not be affected by this judgment. In other words, relief is granted in this Writ Appeal without disturbing the candidates already advised before 10.4.2007. The candidates additionally advised as per this judgment shall be accommodated by the appointing authority in the vacancies to which candidates were advised after 10.4.2007 or were reported after 10.4.2007, but before the main list exhausted. The advice of candidates, if any, made pursuant to the interim order of the Division Bench staying the judgment of the learned Single Judge, being definitely subject to the final orders in the Writ Appeal, can be re-opened by the P.S.C., to implement this judgment. The P.S.C shall undertake and complete the exercise and advise the candidates as directed above within one month from the date of production of a copy of this judgment. The appointing authority shall make consequential appointments without further delay. The Writ Appeal is disposed of as above”.

12. Before dealing with the contentions of the learned counsel for the parties we may refer to the relevant rules which are rules 14 to 17 of the rules. The relevant part of these rules are quoted below:-

“14. Reservation of appointments :- Where the Special Rules lay down that the principle of reservation of appointments shall apply to any service, class or category, or where in the case of any service, class or category for which no Special Rules have been issued, the Government have by notification in the Gazette declared that the principle of reservation of appointments shall apply to such service, class or category, appointments by direct recruitment to such service, class or category shall be made on the following basis:

(a) The unit of appointment for the purpose of this rule shall be 20, of which 2 shall be reserved for Scheduled Castes and Scheduled Tribes and 8 shall be reserved for the Other Backward Classes and the remaining 10 shall be filled on the basis of merit:

Provided that out of every five posts reserved for Scheduled Castes and Scheduled Tribes, one shall go to Scheduled Tribe candidate and the remaining four shall go to Scheduled Caste candidates and in the absence of a candidate to fill up the post reserved for Scheduled Tribe candidates, it shall go to a Scheduled Caste Candidate and vice versa.

(a)     The claims of members of Scheduled Castes and

the Scheduled Tribes and Other Backward Classes shall also be considered for the appointments which shall be filled on the basis of merit and where a candidate belonging to a Scheduled Caste, Scheduled Tribe or Other Backward Class is selected on the basis of merit, the number of posts reserved for Scheduled Castes, Scheduled Tribes or for Other Backward Classes as the case may be, shall not in any way be affected.

(c) Appointments under this rule shall be made in the order of rotation specified below in every cycle of 20 vacancies.

1.         Open competition

2.         Other Backward Classes

3.         Open competition

4.         Scheduled Castes and Scheduled Tribes

5.         Open competition

6.         Other Backward Classes

7.         Open competition

8.         Other Backward Classes

9.         Open competition

10.       Other Backward Classes

11.       Open competition

12.       Scheduled Castes and Scheduled Tribes

13.       Open competition

14.       Other Backward Classes

15.       Open competition

16.       Other Backward Classes

17.       Open competition

18.       Other Backward Classes

19.       Open competition

20.       Other Backward Classes

Provided that the fourth turn in the third rotation and the twelfth turn in the fifth rotation shall go to Scheduled Tribe candidates and the fourth and twelfth turns in the first, second and fourth rotations, the twelfth turn in the third rotation and the fourth turn in the fifth rotation shall go to Scheduled Caste candidates and in the absence of a candidate for appointment against the turn allotted for Scheduled Tribe candidates, it shall go to a Scheduled Caste candidate and vice versa:

…………………………………………….

 Provided also that in preparing the list of eligible candidates to be appointed under this rule applying the rotations specified above in every cycle of 20 vacancies, the candidates eligible to be selected on open competition basis, that is, 1,3,5,7,9,11,13,15,17 and 19 shall be selected first and, then the candidates for the reservation turns, out of those available in the ranked list in the particular groups having regard to their ranks. In finalizing the select list any candidate of the same community selected on open competition turns if found to be below in the order of the candidates selected from the same community on the basis of reservation, for the fixation of ranks as per rule 27 of these rules, candidates of the same community obtaining higher marks shall be interchanged with the candidates of the same community in the reservation turn for the purpose of ranking.

(d)        Notwithstanding anything contained in this rule, posts to which appointments are made by direct recruitment from a common ranked list prepared on the basis of a common test or interview or both, shall be grouped together for the purposes of observance of the rules relating to reservation of appointments.

(e)        A supplementary list of sufficient number of suitable candidates, not less than five times the reservation quota, if available, from each community or group of communities for the purpose of satisfying the reservation quota, shall be prepared and published.

xx  xx xx  xx xx   xx  xx

15. (a) The integrated cycle combining the rotation in clause (c) of rule 14 and the sub-rotation in sub-rule (2) of rule 17 shall be as specified in the Annexure to this Part. Notwithstanding anything contained in any other provisions of these rules or in the special rules if a suitable candidate is not available for selection from any particular community or group of communities specified in the Annexure, such vacancy shall be kept unfilled, notified separately for that community or group of communities for that selection year and shall be filled by direct recruitment exclusively from among that community or group of communities. If after re-notification, repeatedly for not less than two times, no suitable candidate is available for selection from the respective community or group of communities, the selection shall be made from available other Backward Classes candidates. In the absence of Other Backward Classes candidates, the selection shall be made from available Scheduled Castes candidates and in their absence, the selection shall be made from available Scheduled Tribes candidates.

Explanation:- One selection year for the purpose of this rule shall be the period from the date on which the rank list of candidates comes into force to the date on which it expires.

(b) If a suitable candidate is not available for selection from the group of communities classified as “Scheduled Castes” in the turn allotted from such group in the Annexure, the said group shall be passed over and the post shall be filled up by a suitable candidate from the group of communities classified as “Scheduled Tribes” and vice versa.

I The benefit of the turn forfeited to Scheduled Castes or Scheduled Tribes communities by reason of it being passed over under sub-rule (b) shall be restored to it, at the earliest possible opportunity, if a suitable candidate from that particular community or group is available for selection by making adjustment against the claims of the Scheduled Caste or Scheduled Tribe community that derived the extra benefit by reason of such passing over.

17.Reservation to a category of posts shall not exceed 50% of the total number of vacancies for which selection is resorted to in a selection year:

 

Provided that the 50% ceiling to reservation specified above shall not apply to the filling up of any number of reserved vacancies kept unfilled and notified separately as per sub-rule (a) of rule 15 to be filled exclusively by direct recruitment from among a community or group of communities:

Provided further that such class of vacancies to be filled up in that year or in any succeeding year or years shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of 50% of the total number of vacancies of that year.

16.       There shall be sub-rotation among major groups of Other Backward Classes.

17.       (1) The grouping of Other Backward Classes for the above purpose shall be as indicated below :

 

1.         Ezhavas, Thiyyas and Billavas

2.         Muslims

3.         Latin Catholics and Anglo Indians

4.         Nadars (Hindu Nadars and Nadars included in S.I.U.C)

5.         Scheduled Caste Converts to Christianity

6.         Viswakarmas

7.         Dheevaras

8.         Other Backward Classes put together i.e. communities other than those mentioned in items 1 to 7 above included in the list of “Other Backward Classes”.

(2) (a) The 40% reservation allowed to Other Backward Classes shall be distributed among the different groups of Backward Classes in the following proportion:-

  (i) For direct recruitment to posts included in the Kerala Last Grade Service.

Out of every 40 appointments, 11 shall be given to Ezhavas, Thiyyas and Billavas, 10 to Muslims, 4 to Latin Catholics and Anglo Indians, 3 to Nadars (Hindu Nadars and Nadars included in S.I.U.C), 2 to Scheduled Caste Converts to Christianity, 2 to Viswakarmas, 2 to Dheevaras and 6 to Other Backward Classes put together”.

xx xx xx xx xx xx xx

13.       The question in this case is about the interpretation of rules 14 to 17 of the Rules.

14.       A bare perusal of Rule 14 (a) of the Rules shows that a unit for appointment for the purpose of Rule 14 shall be 20, of which 2 are reserved for SC/ST candidates and 8 for OBC candidates, while the remaining 10 shall be on the basis of open merit. The proviso to Rule 14 (a) states that out of 5 posts reserved for SC/ST candidates one post shall go to ST candidates and the remaining to SC candidates, and in the absence of ST candidates it shall go to a SC candidate and vice versa.

15.       Rule 14 (b) however, states that if a SC/ST/OBC candidate is so meritorious that even if he is not treated as SC/ST/OBC he would still qualify in the open merit then he would not be treated as a SC/ST/OBC candidate and he will be adjusted against the 10 seats meant for open merit candidates. In other words, he will not take away the seats reserved for SC/ST/OBC candidates.

16.       Some of the learned counsel appearing for the respondents have submitted that Rule 14 (b) will prevail over rule 14 (a). We do not agree. In our opinion a harmonious interpretation has to be given to Rules 14 (a) and Rule 14 (b), and neither prevails over the other.

17.       It may be noted that rule 14 (a) states that the unit of appointment for the purpose of the Rule shall be 20. A specific number 20 has been stated in Rule 14 (a). Rule 14 (a) does not state that 50% seats are for open merit candidates, 40% for OBC candidates and 10% for SC/ST candidates. In other words, Rule 14 (a) does not mention the percentage of seats at all, but instead it mentions a specific number, viz., 20.

18.       In our opinion reading Rules 14 (a) and (b) along with Rule 14 (d) of the Rules, the correct interpretation of the Rules is that a common rank list as per merit for all the successful candidates in respect of selection to the vacancies notified by the Public Service Commission should be prepared, and reservation should be applied with reference to units of 20. That is, the first 20 most meritorious candidates, that is, from Serial No. 1 to 20 in that common rank list should first be considered for the purpose of reservation. At that stage, candidates from Serial No. 21 and below are not to be considered.

19.       Out of these 20 most meritorious candidates, the appointments have then to be made in accordance with Rule 14 (c), which has been quoted above.

20.       It is only after the selections have been made against these first 20 most meritorious selected candidates, that the P.S.C. should move to the next batch of 20 in the rank list i.e., from Serial No. 21 to 40, and the same process is to be repeated again. Thereafter the third batch of 20 candidates i.e., from Serial No. 41 to 60 should be considered and selections and appointments made as per Rule 14 (a).

21.       Rule 14 (b) of the Rules only means that in these batches of 20 selected candidates the SC/ST or OBC candidate who is so meritorious that he qualified even in the open merit then he will be given an open merit seat and he will not take away any of the reserved seats.

22.       Some of the learned counsel for the respondents submitted that this will cause hardship to some SC/ST/OBC candidates. In our opinion hardship is not a relevant consideration when the meaning of the Rule is plain and clear. The literal rule of interpretation applies in this case.

23.       In our opinion the effect of the High Court’s decision is to read a proviso into rule 14(a) of the Rules as follows: “provided that where the number of vacancies reported to the Commission for advice exceeds 20, the unit of appointment shall be the number of vacancies reported to the Commission”. This is not a legitimate method of interpretation. The High Court could not have re-written Rule 14(a) in this manner based on its conjectures and surmises as to what the legislature intended. It is now well settled by this Court in Dr. Ganga Prasad Verma vs. State of Bihar (1995) Supp 1 SCC 192 (para 5) and Trading Engineers vs. Sales Tax Officer (1978) 1 SCC 636 (para 7) that where the language of the Act or the Rules is clear and explicit, the words of the statute alone represents the intention of the legislature. In fact, the effect of the High Court’s reading these words into Rule 14(a) is to increase the total reservation in favour of the reserved categories beyond 50% and to dilute the merit of those chosen to ever lower levels in violation of Rule 15 of the Rules which only embodies the well settled constitutional principle laid down by this Court in Indra Sawhney vs. Union of India (1992) Supp 3 SCC 215 (para 809).

24.       Rule 16 provides that there shall be sub-rotation among major groups of OBCs. Rule 17(1) lists 8 major groups of OBCs for purposes of Rule 16, i.e. for sub-rotation among major groups of OBCs. Rule 17(2) provides the proportion in which the 40% reservation in favour of OBC is to be distributed among the major OBC groups, which goes up to serial No. 40. Rule 15(a) provides an integrated cycle combining the rotation in Rule 14(c) (i.e. the rotation of candidates from the Open Competition, OBC and SC/ST in a unit of appointment of 20) and the sub-rotation in Rule 17(2) among the OBCs.

25.       It is relevant to note that the Commission has been advising appointments based on a unit of 20 as provided in Rule 14(a) for the last more than 30 years. In fact, this Court in Nair Service Society vs. District Officer, Kerala Public Service Commission (2003) 12 SCC 10 (para 22) had referred to the procedure followed by the Commission in advising appointments based on the rank list for the open merit category and the supplementary list for the reserved category. In our opinion an accepted practice which has been followed by the P.S.C. for so long a period should not be lightly disturbed, unless there are compelling reasons. If two interpretations of the Rules are possible, the interpretation which favours the practice which was being followed for a long period should ordinarily be preferred unless it is clearly in violation of the Rules.

26. In our opinion, the High Court also erred in placing undue reliance on the fact that the annexure to Rule 15 containing the integrated cycle is based on a roster of 100 points. The terms “integrated cycle” and “unit of appointment” are entirely different concepts. The rationale for the integrated cycle based on a 100-point roster is merely to give effect to the principle of rotation and sub-rotation among the reserved category candidates in respect of vacancies that arise at different points of time over a period of one year to a maximum of three years that the list is in force. Further, the sub-rotation among OBCs in Rule 17(2) with reference to 40% reservation in favour of OBC and the requirement in the proviso to Rule 14 (a) that one out of every five posts reserved for SC/ST shall go to ST and the remaining to SC, require an integrated cycle of Open Competition candidates (constituting 50%), OBC candidates (constituting 40%) and SC/ST candidates (constituting the remaining 10% reservation) which can only be reflected in a 100-point roster.

27.       In our opinion, the concept of an “integrated cycle” could never be the basis for rendering the “unit of appointment” of 20 in Rule 14(a) otiose in cases where the number of vacancies reported to the Kerala Public Service Commission exceeds 20. By drawing a distinction between cases where reported vacancies are 20 or less and cases where reported vacancies exceed 20, the High Court has attempted to fill a perceived “casus omissus” on the part of the legislature in Rule 14(a) and, in effect, has written a proviso into the rule that the unit of appointment would change where the total number of vacancies reported exceed 20. It is a settled principle of interpretation that Courts should not add or delete words in a statute or rule.

28.       Normally vacancies are reported to the Commission on various dates and in different numbers. Even in the present case, the Commission had received requisitions on various dates between February 2003 and January 2007 ranging from 3 vacancies to 44 vacancies. This Court in The University of Cochin vs. Dr. N. Raman Nair (1975) 3 SCC 628 (para 6), has observed that Rule 14(c) lays down a scheme of rotation for every block of 20 vacancies and this rule must be applied in the order in which the vacancies occur. Therefore, the Commission cannot wait until the total number of vacancies is reported to the Commission so as to determine whether the vacancies have exceeded 20 or not.

29.       In fact, the High Court has, by a process of interpretation, rendered Rule 14(a) redundant and otiose, even though the validity of the rule was not the subject matter of challenge in any of the writ petitions.

30.       In our opinion, Rule 14(b) merely says that the members of OBC and SC/ST shall be considered for appointment in the Open Competition category, if found meritorious, and such appointment shall not affect the number of seats reserved for the OBCs and SC/ST. In our opinion, Rule 14 (b) ought to be read consistently with Rule 14(a) to the extent that where an OBC or SC/ST candidate is so placed in the merit list that he would be advised against the Open Competition category, i.e. between 1,3,5, 7,9,11,13,15,17,19 the seats in the reserved category, i.e. between 2,4,6, 8,10,12,14,16,18,20 shall not reduce to that extent. The members of OBC and SC/ST would still be entitled to 40% and 10% reservations respectively. On the other hand, if Rule 14(b) is interpreted to increase the unit of appointment from 20 to the number of vacancies where the vacancies exceed 20, Rule 14(a) would be rendered redundant and otiose.

31.       In our opinion, the High Court erred in placing undue reliance on the fact that the annexure to Rule 15 containing the integrated cycle is based on a roster of 100 points. As already stated above, the terms integrated cycle and unit of appointment are entirely different concepts. The rationale for the integrated cycle of 100-point roster is merely to give effect to the principle of rotation and sub-rotation among the reserved category candidates to vacancies that arise at different points of time during the period of 1 year to 3 years that the list is in force.

32.       In our opinion the High Court erred in proceeding on the basis that a large number of vacancies totaling to 267 were reported to the Commission together. As per the affidavits filed by the Commission before the High Court, the requisitions were received during the relevant period at various stages. The details of the vacancies reported during the present selection and the turn in which rotation started and ended at each stage of working out the rotation were as under:

Letter No. & Date        No. of vacancies           Rotation started/ended      Date     of

advice

D3-7204 02 dt. 27/2/03

……………dt. 10/10/03         3 44    

D3-18859 03 dt.25/3/04 ……………..dt.15/9/04 ..…………..dt.30/12/04    45 15 15          MR VIII 40 OBC Do

……………dt. 14/2/05           3          MR X 1 OC                      01/02/06

……………dt.21/6/05 …………..dt.05/9/05 D3 2885 06 dt. 08/3/05           16 20 30          MR X 2E  to MR X 31  17/4/06 OC

D3 2885 06 dt. 18/6/06           40        MR X 72 32 SC to MR  17/7/06 & 71 OC

D3 18859 03 dt. 28/6/06

D3   2884   06   03   dt. 07/7/06          17 (10

NJD & 7

fresh)

1 NJD  MR X 72 SC to MR X  17/7/06 77 OC

14/8/06

D3 12473 06 dt. 08/9/06         7          MR X 78E to MR X 85  28/9/06 OC

D3     12473     06     dt.

12/10/06

D3 2884 06 dt. 07/11/06         7 5 NJD           MR Y 78E to MR X 85  28/9/06 OC

24/11/06

D3     12473     05     dt. 16/11/06       1 NJD  19/12/06

D3     12473     06     dt. 04/12/06 & 21/12/06 D3 2884 06 & 12473 06 dt. 23/01/07 15 3 NJD         MR X 92 ST to MR XI 7  11/01/07 OC

13/02/07

The details of candidates belong to Muslim community advised from the ranked list are as follows:

Rank No.         Name   Turn in which advised   Date           of advice

1 8 28 50         Suni Babu P.P. Muhseena H Shahid M Assainar M       MR VIII 36 M MR VIII 53 OC MR VIII 46 M MR VIII 56 M 01/02/06 01/02/06 01/02/06 01/02/06

82

111

132      Simi Devan Shamsad P Abdul Rafeeq O.P.       MR VIII 66 M MR VIII 76 M MR VIII 80M  01/02/06 01/02/06 01/02/06

149      Jaseena Beegom T        MR VIII 86 M 01/02/06

161 170 183    Sumayya V.K. Vaheeda Rehman A Benazir K.I.           MR VIII 96 M MR IX 6 M MR IX 16 M            01/02/06 01/02/06 01/02/06

185      Nazeema P.K.  MR IX 26 M    01/02/06

192 220 221 235         Shabna Beegum Fakrudeen A Nadarsha P.K. Shaik Anwar KS            MR IX 30 M MR IX 36 M MR IX 46M MR IX 56M        01/02/06 01/02/06 01/02/06 01/02/06

246 247 252    Abdul RV Pottammal Shamsudeen K Bensha P Bashir  MR IX 66 M MR IX 76M MR IX 80 M            01/02/06 01/02/06 01/02/06

Supplementary List – Muslim

 

1 2 3    Abdul Razak P Bindu N Lal Shahina P.K.         MR IX 80M MR IX 96 M MR X 6 M 01/02/06 17/04/06 17/04/06

4          Rehana P          MR X 16 M     17/04/06

5 6 7    Muhas K Kareem Anitha A Khader Murunnisa N K     MR X 26 M MR X 30 M MR X 36 M            17/07/06 17/07/06 17/07/06

8          Arifa V P          MR X 46 M     17/07/06

9

10

11        Sareena N Sahida T Raseena Beevi M  MR X 56 M MR X 66 M MR X 76 M            17/07/06 17/07/06 28/09/06

12        Rahina V K      MR X 80 M     06/11//06

13 14   Shemi K Mohammed N Beena S          MR X 86 M MR X 96 M         11/01/07 11/01/07

 

33. This Court in University of Cochin vs. Dr. N. Raman Nair (1975) 3 SCC 628 has observed that Rule 14(c) lays down a scheme of rotation for every block of 20 vacancies and this rule must be applied in the order in which the vacancies occur.

34. This Court in Nair Service Society vs. District Officer, Kerala Public Service Commission (2003) 12 SCC 10 (para 22) had the occasion to examine the Rules, the ranked merit list and the supplementary reserved list prepared by the Commission, and the principles followed by the Commission in making the appointments.  This Court observed as follows:

“….Based on the procedure so prescribed, KPSC prescribes the ranked merit list in the order of merit. The candidates are arranged strictly according to the community or caste or group or according to the cycle of rotation, in reservation. The number of candidates to be included in this rank list is filed with reference to some principles followed by them, which are explained in para 4 of KPSC’s writ appeal before the High Court (pp. 102-103). The candidates are advised for appointment as and when vacancies are reported, but following the rules of reservation and rotation prescribed in Rules 14 to 17”.

The Commission has advised appointments based on a unit of 20 for the last more than 30 years. The principle of reservation, rotation and sub-rotation are all applied based on this unit of 20.

35.       Several decisions have been cited before us by the respondents, but it is well established that judgments in service jurisprudence should be understood with reference to the particular service rules in the State governing that field. Reservation provisions are enabling provisions, and different State Governments can have different methods of reservation. There is no challenge to the Rules, and what is challenged is in the matter of application alone. In our opinion the communal rotation has to be applied taking 20 vacancies as a block.

36.       The High Court ought to have considered that the vacancies were reported to the Commission in various spells and filling up the turn of a community is a continuous process, and the Commission cannot wait to advise a reservation candidate till his turn arises for advice and keep the community turn unfilled or advise a candidate lower in rank retaining a candidate who is above him in the list by anticipating reporting of vacancies.

37.       In our opinion the Commission has correctly advised candidates in the order in which the requisitions were received, and that too by correctly applying the principle contained in the rules.

38.       Rule 14 prescribes the procedure for implementation of reservation of appointments. Clause (a) of this Rule prescribes that unit of appointment for the purposes of this Rule shall be 20 whereas clause (c) specifies the order of rotation in every cycle of 20 vacancies. Though the proviso to the sub-rule provides that candidates selected on open competition turns can be interchanged with the candidates selected on the basis of reservation, the same is permissible within the unit of 20 only.

39.       The High Court in paragraph 15 of the impugned judgment has observed :

“15. The point to be decided is whether such application of rotation will run counter to any of the provisions of Rules 14 to 17 or whether that will give effect to the intention of the said Rules. We are of the view that none of the above said Rules stand in the way of applying the rotation as above by allotting every alternative vacancy to merit quota and reserved quota. Rule 14(a) contemplates a situation of reporting of vacancies numbering less than 20. There are hundreds of posts where the number of vacancies reported will normally be below 20 at a particular point of time. Vacancies are reported in large numbers only in the case of L.D.Clerks, Police Constables, Medical Officers etc. When vacancies numbering more than 20 are reported and if reservation is applied as stated above by allotting every alternative vacancy firstly to open competition candidates and the remaining vacancies to candidates eligible for reservation, the same will effectuate the purpose of the rules of reservation. The members of Other Backward Classes will get 40% of the vacancies meant for them. We are of the view that for canvassing for the above position, the writ petitioners need not challenge any of the Rules. A proper construction of the Rules which will advance the object of them will mandate the P.S.C to make the advices as stated above. Any other application of the Rules will amount to ultra vires and unauthorized action.”

40.    With respect we are unable to agree with interpretation of Rules 14 to 17 given by the High Court in the impugned judgment.

41. It may be mentioned that there is no challenge to the validity of these Rules. Hence we have to read the Rules as they are. In our opinion, the so-called purposive interpretation sought to be placed on the Rules by the High Court was misconceived and is, therefore, not acceptable.

42. The High Court in its observation quoted above has sought to find out the intention of Rules 14 to 17. In our opinion the question of finding the intention arises only when a statute is not clear. If the statute is clear as it is in this case, it has to be read as it is, and the literal rule of interpretation is to be applied. In our opinion intention seeking is ordinarily to be done only when the statute is not clear.

43.       It may be mentioned that reservation provisions are enabling provisions. In other words, the State is not bound to make a reservation, but it is empowered to do so in its own discretion vide M. Nagraj and Others vs. Union of India and others (2006) 8 SCC 212. In paragraph 102 of the said judgment, the Constitution Bench of this Court observed: “The impugned constitution amendments are enabling in nature. They leave it to the States to provide for reservation.”

44.       The same view has been taken in paragraphs 107 and 123 of the aforesaid decision.

45.       Different State Governments in the country may have different methods for providing reservations, and these will be valid as long as the method adopted by a particular State Government does not violate any constitutional provision or statute. It is not for this Court to decide on the wisdom or otherwise of the said method of reservation. This Court should exercise judicial restraint and not interfere with the same unless there is some clear illegality. In our opinion the method prescribed by the Rules made by the State Government suffers from no infirmity or illegality, and hence the High Court acted wrongly in allowing the Writ Petition. We are clearly of the opinion that the High Court has placed a wrong interpretation on the relevant Rules.

46.       In our opinion the High Court was in error in directing the Commission to ignore the express mandate of Rule 14 (a). The High Court was wrong in holding that the said Rule only applies when the vacancies are less than 20. In fact the direction of the High Court in the impugned judgment really amounts to treating the entire number of vacancies which in the present case is 250 as one unit, which is against the express mandate of Rule 14(a). Thus the High Court has really amended Rule 14(a) and (c) of the Rules, which was not in its jurisdiction. It is only the legislature which can amend the law, and not the Court.

47.       In our opinion the correct interpretation of Rule 14 to 17 is that the Public Service Commission should adopt each batch of 20 candidates as a separate unit for the purpose of reservation and not take the entire select list as one unit.

48.       It is true that reserved category candidates can compete for the non-reserved post as provided for in Rule 14 (b), which only provides what has already been laid down by the Constitution Bench of this Court in R.K. Sabharwal and others vs. State of Punjab and others (1995) 2 SCC 745. Rule 14(b), however, will apply only to units of 20 candidates, and not for the total vacancies.

49.       For the reasons given above the appeal is allowed, the impugned judgment of the Division Bench of the Kerala High Court as well as of the learned Single Judge, are set aside and the Writ Petitions are dismissed. There shall be no order as to costs.

CA No…..…..of 2009 [@ SLP(Civil) No. 21139 of 2008]

50. Leave granted. The appellant was one of the candidates in the Rank list published by the P.S.C. for appointment to the post of High School Assistant (Natural Science – Malayalam Medium). She is a convert from a Scheduled Caste to Christianity and claimed benefit of reservation available to Other Christians. She approached the High Court in WP No. 12816/2007 alleging that P.S.C. had advised an open competition category candidate for the post reserved for ‘OX’ category for which she was an eligible candidate. Her grievance is that while disposing of her petition along with WA No. 1697/2007, the High Court by enunciating the legal principle incorrectly, had wrongly denied her relief on the erroneous impression that her turn did not arise before the expiry of rank list. As we are holding that the interpretation of Rules 14 to 17 by the High Court was erroneous, the dismissal of her writ petition has to be upheld, though on a different ground.

CA No…..…..of 2009 [@ SLP(Civil) Nos. 439-443 of 2008]

51. Leave granted. These appeals are filed by P.S.C., being aggrieved by the common order dated 11.11.2008 of a learned Single Judge disposing of WP(C) No. 25077, 26089, 24158, 28435 and 16599/2008 (filed by some candidates after the rank lists were published and advices were made) with a direction to the P.S.C. to apply the principles laid down in the judgment dated 23.5.2008 of the Division Bench in WA No. 1697/2007 to all advices made by P.S.C. on or after 23.5.2008 in respect of bulk vacancies exceeding 20 in number reported to it in a given requisition (or where the requisition received from the appointing authority on a given day exceeds 20 vacancies). Following our decision in the Civil Appeals arising from WA No. 1697/2007, these appeals are allowed and the writ petitions are dismissed. No costs.

 

Raveendran)

 

…………………………J (R.V.

 

 

 

New Delhi; 30th March, 2009

 

…………………………J (Markandey Katju)

 

 

 

 

Satya Narain and Others vs. Om Prakash and Others dated 2009-03-30

http://legalapproach.net/case_details.php?jid=1412

 

 NON-REPORTABLE

 

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2012 OF 2009

(@ SPECIAL LEAVE PETITION (CIVIL) NO. 5028 OF 2007)

 

Satya Narain and Others …..Appellant(s)

– Versus –

Om Prakash and Others ….Respondent(s)

 

J U D G M E N T GANGULY, J.

 

1. Leave granted.

 

1. The subject matter of challenge in this case is the judgment and order dated 3rd January 2007 of Rajasthan High Court in Civil Second Appeal No.63/1990, whereby the High Court has dismissed the appeal.

 

2. The material facts of the case are that on 4.3.1953 one Smt. Lado w/o Late Shri Meghraj mortgaged two houses to the father of the present appellants for a sum of Rs.4000/-. After the death of Smt. Lado, her adopted son Malchand on 2.12.1958 filed a suit, being Suit No.156/58 before the Civil Judge Nagaur, Rajasthan inter alia claiming therein that the mortgaged deed was executed by one Chhoga Lal and Bajrang Lal by playing fraud upon his mother and thereby declaration was claimed that the mortgage was null and void and the possession of the property which was allegedly taken by Chhoga Lal and Bajrang Lal unauthorizedly may be restored to him.

 

3. By a judgment and order dated 23.12.1964, Civil Judge Nagaur, Rajasthan dismissed the suit inter alia holding that Malchand, the plaintiff, failed to establish his adoption by Meghraj. It was further held that Malchand is not entitled to file the suit.

 

4. Being aggrieved thereby, Malchand filed an appeal being Appeal No.13/1965 before the District Judge, Merta and the learned District Judge vide judgment and order dated 6.7.1967 allowed the appeal No.13/1965 holding inter alia that Malchand is the adopted son of Meghraj and, therefore, the decree for possession of the two houses described in para 3 of the plaint and mortgaged with Mrs. Lado was passed in favour of Malchand. He was directed to pay Rs.4000/- and Rs.2064/- as interest from the date of mortgage i.e. 4.3.1953 @ 9% per annum to the date of Suit i.e. 28.11.1958 to the defendants, in all Rs.6064/- and further interest at the rate of 6% per annum from the date of Suit till payment on the original Principal amount of Rs.4000/-. It was also held that Malchand should be entitled to recover possession of two mortgaged houses described in para 3 of the plaint along with the Iron safe and Title deeds given to the defendants at the time of mortgage by Smt. Lado. While deciding the appeal, the learned District Judge also disposed of the cross-objection.

 

5. Thereafter, on 6.10.1968, the appellant filed an application being Civil Misc. Case No.6/1968 before the District Judge, Merta praying therein to specify some time for the payment of decretal amount. To that application being Civil Misc. Case No.6/1968, Malchand filed an opposition inter alia claiming that the suit filed by him was for the possession of the property and not for the redemption of mortgaged property and, therefore, the Court cannot specify any time limit for the payment of decretal amount and the provisions of 12 years Limitation as prescribed for execution of decree shall apply to this case.

 

6. The learned District Judge, Merta vide an order dated 8.5.1969 dismissed the application of the appellant in Civil Misc. Application No.6/1968 inter alia holding that if the plaintiff i.e. Malchand comes with the execution of the decree, then it is up to the judgment debtors to take suitable objections in the said execution proceeding.

 

7. The appellant’s contention is that the period of limitation which according to him is 12 years from the date of decree expired but Malchand neither paid the decretal amount specified in the decree nor got the decree executed. Thereafter on 4.10.1982 which is about 15 years from the date of decree Kesrimal, an Attorney holder of the Malchand, sold the said property to Om Prakash, the respondent herein. According to the appellant, under the same Power of Attorney Malchand did not give any authority to Kesrimal to sell the property.

 

8. The subsequent purchaser Om Prakash, the respondent herein, filed an application on 12.10.1982 being Civil Misc. Case No.10/1984 under Order 34 Rule 8 of C.P.C before the Civil Judge, Merta praying for a Final Decree for the redemption of mortgage. The said claim of the respondent was contested by the appellants, inter alia, on the ground that the original suit of Malchand was not for redemption of mortgage but it was a suit for declaration that the mortgage is null and void and for possession of the property. It was also contended by the appellant that the original decree which was passed is the final decree and its execution is barred by limitation and the person who has executed the sale deed in favour of respondent herein has no authority to do so. Ultimately, the Civil Judge, Merta by judgment and order dated 9.2.1988 allowed the Civil Misc. Application of the respondent and passed a Final Decree and the following order was passed:- “Therefore the instant Application filed by Om Prakash under order 34 Rule 8 is allowed and it is ordered that after the compliance of Decree dated 6.7.1967 by the Applicant, Final Decree with regards to Property in question and Title deed be passed and on compliance of orders of Decree dated 6.7.1967, non-applicants shall hand over the mortgaged property and title deed to the Applicant.”

 

9. Being aggrieved thereby, the appellant filed an appeal being Appeal No.3/1988 before the First Appellate Court and there also the learned District Judge, Nagaur dismissed the appeal by judgment dated 9.7.1990 and passed the following order:- “This Court is of the opinion that there are no circumstances to set aside the Judgment dated 9.2.1988 and Decree dated 12.2.1988 passed by Civil Judge, Merta. Hence the Appeal fails and hereby dismissed.”

 

10. Thereupon the appellants filed the Second Appeal No.63/1990 before the High Court challenging the order passed by the District Judge.

 

11. By the judgment under appeal the High Court dismissed the second appeal. In the said second appeal the following questions of law were framed:- “(1) That Learned Addl. District Judge was not correct in holding the Decree-dated 6.7.1967 passed by the Learned District Judge in Civil Appeal No.13/65 to be a Preliminary Decree in the Suit for Redemption and it has further erred in holding that an Application for passing a Final Decree for Redemption was maintainable and it was within time. (2) That Decree in dispute dated 6.7.67 passed by Learned District Judge, Merta in Civil Appeal No.13 of 1965 was a mere Decree for Possession on payment ascertained amount mentioned therein, which has become barred by Limitation under Article 136 of Limitation Act and was not capable of execution. Thus application under order 34 rule 8 was not maintainable and the Learned Judge has erred in holding that was maintainable. (3) That even if it is consideration to be a Redemption Decree, it was Final Decree in Suit for Redemption, which also had become barred by Limitation under Article 136 of Limitation Act and thus Application under order 34 Rule 8 CPC was not maintainable. (4) That the Learned Judge has misconstrued the alleged Power of Attorney executed in favour of Kesrimal by Malchand and has erred in interpreting the work “to be” “No authority was given to Kesrimal to sell the property in dispute or Decree in dispute, and therefore, the alleged Sale Deed in favour of Respondent No.1 Om Prakash is absolutely void.”

 

12. The High Court in its judgment under appeal dealt with all the questions and came to a finding, and in our view rightly so, that the decree was passed in a case of recovery of possession of mortgage property and that was specifically a decree for redemption of mortgage property. The High Court also held that the said decree attained finality as it was not challenged by the defendant judgment debtor. The High Court noted that the present appellant only sought for early payment of the decretal dues by moving an application before the First Appellate Court. The High Court also came to a finding that the decree dated 7.6.1967 was a preliminary decree and the plaintiff cannot be denied the opportunity of getting the time for depositing the amount for redeeming the mortgage property. The High Court rightly held that such right is given under Order 34 Rule 7 of the Code. It is clear that it was open to the defendant to take steps for passing final decree in terms of Rule 7 of Order 34 of the Code and that could have debarred the other side from redeeming the mortgage property. The defendant did not do so and the decree holder ultimately deposited the amount in the Trial Court before final decree was passed. The High Court also held that the power of attorney executed by Malchand allowed the power of attorney holder to have all powers including the authority to mortgage, sale or gift the property for any or philanthropic purposes. However, the High Court concluded by saying that the decree dated 6.7.1967 was a preliminary decree and was passed for redemption of mortgage of the property and thereafter an application for passing final decree was filed within the period of limitation.

 

13. We affirm the view taken by the High Court. The appeal is, therefore, dismissed. No order as to costs.

 

…………………..J.

(Dr. ARIJIT PASAYAT)

 

…………………..J.

 (ASOK KUMAR GANGULY)

 

New Delhi,  March 30, 2009

 

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One Response

  1. Hmmmm… sooo what’s the point of this post ??? By: Seo Analysis

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