Showing posts with label Writ. Show all posts
Showing posts with label Writ. Show all posts

07 October 2020

Temporary appointment in a service can not be regularised as permanent service

In regard to the petitioner's prayer regarding regularization, reference must be made to the decision of the Apex Court in State of Karnataka vrs. Umadevi (2006) 4 SCC 1 and essentially the observation made in para 15, 16 and 53 which reads as follows:
"15. Even at the threshold, it is necessary to keep in mind the distinction between regularization and conferment of permanence in service jurisprudent. In State of Mysore v. S.V. Narayanappa [(1976) 1 SCR 128: AIR 1967 SC 1071] this Court stated that it was a misconception to consider that regularization meant permanence. In R.N. Nanjundappa v. T. Thimmiah [(1972) 1 SCC 409: (1972) 2 SCR 799] this Court dealt with an argument that regularization would mean conferring the quality of permanence on the appointment. This Court stated: (SCC pp. 416-17, para 26) 
"Counsel on behalf of the respondent contended that regularization would mean conferring the quality of permanence on the appointment whereas counsel on behalf of the State contended that regularization did not mean permanence but that it was a case of regularization of the rules under Article 309. Both the contentions are fallacious. If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules."

16. In B. N. Nagarajan v. State of Karnataka [(1979) 4 SCC 507: 1980 SCC (L&S) 4: (1979) 3 SCR 937] this Court clearly held that the words "regular" or "regularization" do not connote permanence and cannot be construed so as to convey an idea of the nature of tenure of appointments. They are terms calculated to condone any procedural irregularities and are meant to cure only such defects as are attributable to methodology followed in making the appointments. This Court emphasized that when rules framed under Article 309 of the Constitution are in force, no regularization is permissible in exercise of the executive powers of the Government under Article 162 of the Constitution in contravention of rules. These decisions and the principles recognized therein have not been dissented to by this Court and on principle, we see no reason not to accept the proposition as enunciated in the above decisions. We have, therefore, to keep this distinction in mind and proceed on the basis that only something that is irregular for want of compliance with one of the elements in the process of selection which does not go to the root of the process, can be regularized and that it alone can be regularized and granting permanence of employment is a totally different concept and cannot be equated with regularization.

53. One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V. Narayanappa [(1967) 1 SCR 128: AIR 1967 SC 1071], R. N. Nanjundappa [(1972) 1 SCC 409: (1972) 2 SCR 799] and B.N. Nagarajan [(1979) 4 SCC 507: 1980 SCC (L&S) 4: (1979) 3 SCR 937] and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularization of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgement. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularize as a one-time measure, the services of such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up, in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularization, if any already made, but not sub judice, need not be reopened based on this judgement, but there should be no further bypassing of the constitutional requirement and regularizing or making permanent, those not duly appointed as per the constitutional scheme"[Para No.19]


    In my considered opinion, the petitioners cannot rely upon the doctrine of legitimate expectation to seek regularization of employment. The petitioners from the very beginning of their contract were fully aware of the temporary nature of employment and that it would expire within stipulated period unless extended by the Government. The Hon'ble Apex Court in this regard has dealt with this principle in Umadevi (Supra) and held as follows:
Temporary appointment in a service can not be regularised as permanent service
"47. When a person enters a temporary employment or gets engagements as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent of the post.

06 September 2020

Writ petition of Habeas Corpus in High Court is maintainable in respect of illegal custody of a minor child by one parent

The first issue before this Court is whether a Habeas Corpus petition is maintainable or not in respect of custody of a minor child, who is in the custody of the father and grandparents at Gwalior. [Para No.11]

Writ petition of Habeas Corpus in High Court  is maintainable in respect of illegal custody of a minor child by one parent
    The apex Court in the case of Capt. Dushyant Somal Vs. Sushma Somal and another reported in (1981) 2 SCC 277 has dealt with the jurisdictional aspect with regard to issuance of Habeas Corpus writ in respect of illegal custody of Child. Paragraphs 3, 5 and 7 of the aforesaid judgment reads as under :-
"3. There can be no question that a Writ of Habeas Corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out.
    Nor is a person to be punished for contempt of Court for disobeying an order of Court except when the disobedience is established beyond reasonable doubt, the standard of proof being similar, even if not the same, as in a criminal proceeding. Where the person alleged to be in contempt is able to place before the Court sufficient material to conclude that it is impossible to obey the order, the Court will not be justified in punishing the alleged contemner. But all this does not mean that a Writ of Habeas Corpus cannot or will not be issued against a parent who with impunity snatches away a child from the lawful custody of the other parent, to whom a Court has given such custody. Nor does it mean that despite the contumacious conduct of such a parent in not producing the child even after a direction to do so has been given to him, he can still plead justification for the disobedience of the order by merely persisting that he has not taken away the child and contending that it is therefore, impossible to obey the order. In the case before us, the evidence of the mother and the grand- mother of the child was not subjected to any cross- examination; the appellant-petitioner did not choose to go into the witness box; he did not choose to examine any witness on his behalf. The evidence of the grand- mother, corroborated by the evidence of the mother, stood unchallenged that the appellant-petitioner snatched away Sandeep when he was waiting for a bus in the company of his grand-mother. The High Court was quite right in coming to the conclusion that he appellant-petitioner had taken away the child unlawfully from the custody of the child's mother. The Writ, of Habeas Corpus was, therefore, rightly issued. In the circumstances, on the finding, impossibility of obeying the order was not an excuse which could be properly put forward.
5. It was submitted that the appellant-petitioner did not give evidence, he did not examine any witness on his behalf and he did not cross-examine his wife and mother-in-law because, he would be disclosing his defence in the criminal case, if he so did. He could not be compelled to disclose his defence in the criminal case in that manner as that would offend against the fundamental right guaranteed by Article 20(3) of the Constitution. It was suggested that the entire question whether the appellant-petitioner had unlawfully removed the child from the custody of the mother could be exhaustively enquired into in the criminal case where he was facing the charge of kidnapping. It was argued that on that ground alone the writ petition should have been dismissed, the submission is entirely misconceived. In answer to the rule nisi, all that he was required to do was to produce the child in Courts if the child was in his custody. If after producing the child, he wanted to retain the custody of the child, he would have to satisfy the Court that the child was lawfully in his custody. There was no question at all of compelling the appellant-petitioner to be a witness against himself. He was free to examine himself as a witness or not. If he examined himself he could still refuse to answer questions, answers to which might incriminate him in pending prosecutions. He was also free to examine or not other witnesses on his behalf and to cross examine or not, witnesses examined by the opposite party. Protection against testimonial compulsion" did not convert the position of a the position of a person accused of an offence into a position of privilege, with, immunity from any other action contemplated by law. A. criminal prosecution was not a fortress against all other actions in law. To accept the position that the pendency of a prosecution was a valid answer to a rule for Habeas Corpus would be to subvert the judicial process and to mock at the Criminal Justice system. All that Article 20(3) guaranteed was that a person accused of an offence Shall not be compelled to be a witness against himself, nothing less and, certain nothing more. Immunity against testimonial compulsion did not extend to refusal to examine and cross-examine witnesses and it was not open to a party proceeding to refuse to examine himself or anyone else as a witness on his side and to cross examine the witnesses for the opposite party on the ground of testimonial compulsion and then to contend that no relief should be given to. the opposite party on the basis of the evidence adduced by the other party. We are unable to see how Article 20(3) comes into the picture at all.
7. It was argued that the wife had alternate remedies under the Guardian and Wards Act and the CrPC and so a Writ should not have been issued. True, alternate remedy ordinarily inhibits a prerogative writ. But it is not an impassable hurdle. Where what is complained of is an impudent disregard of an order of a Court, the fact certainly cries out that a prerogative writ shall issue,. In regard to the sentence, instead of the sentence imposed by the High Court, we substitute a sentence of three months, simple imprisonment and a fine of Rupees Five hundred. The sentence of imprisonment or such part of it as may not have been served will stand remitted on the appellant-petitioner producing the child in the High Court. With this modification in the matter of sentence, the appeal and the Special Leave Petition are dismissed. Criminal Miscellaneous Petition No. 677/81 is dismissed as we are not satisfied that it is a fit case for laying a complaint."[Para No.12]

14 August 2020

Revenue authority can not refuse to issue property extract of a property even if an offence is registered in respect of its transaction

It is also stated in Status Report that it was also found during investigation that SGCT Mohinder Singh has purchased land measuring 5 ½ Marlas under Khasra no.497 min situated at Barnai, Jammu, from one, Kiran Bala daughter of Hans Raj resident of Barnai, Bantalab, Jammu, in the year 2012 and sale deed had been executed in favour of alleged accused, Mohinder Singh, for sale consideration of Rs.3.85 Lacs, which was also mutated in his favour. The matter was taken up with Tehsildar North, Jammu, asking him not to allow alienation of the above landed property till further communication from Investigating Agency. Respondents maintain that when accused, Mohinder Singh, became aware about initiation of enquiry, he sold aforesaid piece of land to one, Tanveer Malik (petitioner herein) for Rs.4,68,875/-. The statement of OWP no.1404/2017 IA no.01/2017 witnesses was recorded under Section 161 and 164-A Cr.P.C. Besides, the amount collected by accused, Nirmal Kour and Mohinder Singh, from depositors by way of cheating and fraud, is required to be recovered from them, for which all efforts are being made by respondent and that the investigation of the case is in progress. Thereafter, again on 8 th August 2019 respondent no.2 filed Status Report reiterating the averments made in earlier Status Report and nothing new emerges therefrom.[Para No.5]

  Respondents 1&3 (Revenue Department) have filed their objections, asserting therein that FIR no.23/2014 police Station Crime Branch, Jammu, has been lodged against Nirmal Kour and Mohinder Singh, who have sold the land to petitioner. Respondents have made reference of communication no.CBJ/FIR-23/14/21078 dated 21st December 2015, in which they were asked not to allow alienation of land measuring 5 ½ Marlas falling under Khasra no.497 min situated at Barnai, Jammu, and make necessary entry in this regard in revenue records. Respondents 1&3 maintain in their Reply that petitioner was in possession of land in question, mutated in his favour, prior to filing of complaint against seller/vendor and, therefore, petitioner had purchased the land in question legally and was holding its possession peacefully. However, in view of communication dated 21st December 2015, received from Zonal Headquarters, Crime Branch, Jammu, issuance of revenue papers (Fard) has been withheld as respondents have no option but to withhold issuance of revenue paper in order to carry out the directions received from Crime Branch.[Para No.6]

Revenue authority can not refuse to issue property extract of a property even if an offence is registered in respect of its transaction
    Petitioner has purchased land in question by way of a Sale Deed. The said Sale Deed has been registered by registering authority, viz. Sub Registrar, Jammu, on 9th July 2014. Registration of a document, in the present case is a Sale Deed, is a final seal to a document to be implemented and carried in revenue records. From the file as also from the Reply, filed by respondents 1&3, it is evident that mutation has been effected in compliance of registration of aforesaid Sale Deed and necessary entries have been made in revenue records by Revenue Department. Neither Sale Deed nor is Mutation under challenge before any court of law and therefore, the same has attained finality.[Para No.8]

    In addition to this, perusal of Reply reveals that respondents 1&3 have categorically stated that petitioner was in possession of land in question, mutated in his favour, prior to filing of complaint(s) against seller/ vendor and that petitioner has purchased the land in question legally and was holding its possession peacefully. Once that being the position, issuance of impugned direction contained in communication dated 21 st December 2015, amounts to infringement of constitutional and statutory rights of petitioner. He has purchased the land in question by way of a valid document. Preventing him from enjoying the property amounts to infringement of his constitutional rights as guaranteed under Article 300A of the Constitution of India and a human right as well. Petitioner has every right to obtain revenue excerpts with respect to his aforesaid landed property as also to alienate it in accordance with laws and rules regulating the field.[Para No.9]

23 July 2020

Writ petition u/A 226 is not maintainable against inaction of police in registration of FIR

Investigation is the function of the police and writ court cannot be converted as an investigation agency.


   Indeed that Section 39 of the Cr.P.C enables the public to set the criminal law in motion, but if the officer in-charge, fails to register an FIR, the Hon'ble Supreme Court as well as this Court, in the above decisions have considered whether the only remedy open to the complainant or the first informant or the member of public to approach the High Court under Article 226 of the Constitution of India and that there is no other remedy provided under any other law, and answered that writ is not the remedy.[Para No.103]

   It is clear from the above provisions in the Cr.P.C., that if the police did not register a case on the basis of a complaint filed by the complainant, then he has got a remedy in the Code of Criminal Procedure, by approaching the jurisdictional Magistrate under Section 156(3) of the Code or even file a private complaint under Section 190 read with Section 200 of the Code, and when a complaint is filed, then the Magistrate has to conduct enquiry under Sections 200 and 202 of the Code, and if the Magistrate is satisfied on the basis of the materials produced before that court that commission of an offence has been prima facie made out, then the Magistrate can take cognizance of the case and issue process to the accused under Section 204 of the Code. If the Magistrate is not satisfied with the materials produced and if he is satisfied that no offence has been made out, then the Magistrate can dismiss the complaint under Section 203 of the Code.[Para No.104]

Writ petition u/A 226 is not maintainable against inaction of police in registration of FIR
   Even if the Station House Officer commits a mistake in arriving at the conclusion that the allegations are not sufficient to attract the ingredients of commission of a cognizable offence, even this Court cannot invoke the power under Article 226 of the Constitution of India, go into the question as to whether non satisfaction by the Station House Officer is proper or not, to issue a writ of mandamus or other writs directing the Station House Officer to register a crime as it is a matter to be considered by the Magistrate under Section 190 read with Section 200 of the Code on a complaint filed by the aggrieved party on account of the inaction on the part of the police in not registering case in such cases. If an enquiry has to be conducted for satisfaction regarding the commission of offence, then it is not proper on the part of the High Court to invoke the power under Article 226 of the Constitution of India and parties must be relegated to resort to their statutory remedy available under the Code in such cases. After lodging the complaint before the concerned police and if the police is not registering the case, the aggrieved person/complainant can approach the Superintendent of Police with written application under Section 154(3) of the Code of Criminal Procedure, and even in a case the Superintendent of Police also does not register an FIR or no proper investigation is done, the aggrieved person can approach the Magistrate concern under Section 156 (3) of Cr.P.C. Without resorting to the procedure as contemplated in the Cr.P.C, the petitioner has approached this Court under Article 226 of the Constitution of India.[Para No.105]

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