High Court of Delhi

B.P. Singh and Ors. Vs. MCD and Ors.

MANU/DE/2906/2017

25.09.2017

Service

Grant of pay-scale of the higher post would be justified only if the employee was actually performing duties of the higher post

The present writ petition assails the order passed by the Central Administrative Tribunal, whereby the Tribunal has dismissed the Petitioner's transfer application. The Petitioners had filed a writ petition before this Court seeking the benefit of the higher pay scale of the post of School Inspector (General) from 3rd January, 1994 to 31st December, 2003. The petition was transferred to the Tribunal and vide impugned order, the Petitioners' claim has been rejected by the Tribunal. The question, thus, which needs to be addressed is, whether in view of the admitted fact that, from 3rd January, 1994, the Petitioners had not only been specifically appointed as Area Organisers but also specifically put to notice that, their salary would be in the pay scale of an Area Organiser, can they still claim the salary of a School Inspector (General), by contending that during relevant period, they were asked to discharge some duties of School Inspector, even when there is, admittedly, no order directing or authorising them to work as School Inspector.

The Petitioners were appointed as Area Organizers in the year 1993, pursuant to the creation of 12 posts of Area Organisers in the pay scale of Rs. 1640-2900/- for a specific project called 'Education for All', which was implemented by the Respondent-Corporation in collaboration with UNICEF, NCERT and Government of India. After the project ended in 1996, the Respondent after upgrading 12 posts of Assistant Teachers to the post of Area Organisers, issued fresh appointment letters in August, 1996 against which the Respondents continued to work as Area Organiser. Pertinently, the fresh appointment letters issued to the Respondents also clearly specified the post and pay scale of Area Organisers.

It is an undisputed position that, while the Petitioners were continuing to work on the post of Area Organisers, the Respondent-Corporation had introduced a Mid-day-Meal (MDM) Scheme in 2003 for its primary schools, for which 16 new posts of School Inspector (Mid-day Meal) were created. It is also an admitted position that upon upgradation of 10 posts of Area Organisers to that of School Inspector (MDM), the Petitioners were - vide order, appointed as School Inspector (Mid-day Meal) in the pay scale of Rs. 6,500-10,500/- on deputation basis.

The Petitioners also do not dispute the fact that, while their earlier writ petition seeking pay scale of School Inspector (General) from 3rd January, 1994 was pending adjudication, they had filed another writ petition before this Court, claiming that, their upgradation to the post of School Inspector (MDM) w.e.f. 19th December, 2003 ought to be on regular basis and not on deputation as done by Respondents. In this petition, they had also claimed the salary in the pay scale of Rs. 6500-10500/- from the date of their appointment as School Inspector (MDM) i.e. 19th December, 2003. The writ petition was disposed of by this Court vide its order, holding that, the Petitioners having worked as Area Organisers, could not claim the right to be treated as substantive School Inspector (General). The Court, however, directed the Respondents to finalise its policy for filling up the newly created 10 posts of School Inspector (MDM) and consider the Petitioners for the said posts by keeping in mind the duties discharged by them as substantive Assistant Teacher from 1993. This aforesaid judgment was implemented and upon notification of the Recruitment Rules for the post of School Inspector (Mid Day Meal), all the Petitioners were appointed as School Inspector (Mid Day Meal) on regular basis after giving them relaxation in educational qualifications. From 19th December, 2003, when the Petitioners were appointed as School Inspector (Mid Day Meal), initially on deputation basis and thereafter on regular basis, they were being paid the pay scale of School Inspector (Mid Day Meal).

There was no document showing that, the Petitioners while working as Area Organiser were discharging the duties as School Inspector (General). Merely because some duties which are to be generally performed by School Inspectors (General) might have been performed by the Petitioners, who were working as Area Organiser, cannot be a ground to grant them the pay scale of a School Inspector (General). Merely because School Inspectors (General) were not allotted for the schools, where the Petitioners were working as Area Organisers, cannot be taken to conclude that, Area Organisers were working as School Inspector (General). It could imply was that keeping in view the nature of duties of Area Organisers, which were admittedly higher than that of Assistant Teachers, no requirement was felt by the Respondents to post School Inspectors (General) in respect of their schools.

As per the decision of the Supreme Court in the case of Secretary-Cum-Chief Engineer, Chandigarh v. Hari Om Sharma & Ors., and the decision of this Court in the case of Delhi Cantonment Board v. Smt. Raj Kumari Sachdeva & Ors., the grant of pay-scale of the higher post would be justified only if the employee was actually performing duties of the higher post.

The posts of Area Organisers on which the Petitioners served till the year 2003, constituted a completely different cadre and post, from that of the School Inspectors (General). The post of Area Organiser was a Grade 'C' post, while the post of School Inspector was a Grade 'B' post. The Petitioners were upgraded w.e.f. 19th December, 2003 from Area Organisers to School Inspector (MDM) which was a newly created post and there is no merit in their claim that, they had been discharging duties of School Inspector (General) from 3rd January, 1994 itself. High Court is of the view that, there is nothing to substantiate the claim of the Petitioners that, they were ever asked to discharge the duties of School Inspector (General), or that they actually discharged the duties of School Inspector (General). Mere overlapping of some duties of Area Organiser and School Inspector (General) cannot lead to the conclusion that, the Petitioners as Area Organisers, were performing the duties of School Inspector (General). The writ petition has no merit and is dismissed.

Relevant

Secretary-Cum-Chief Engineer, Chandigarh v. Hari Om Sharma & Ors., MANU/SC/1091/1998
: V(1998) SLT 1, Delhi Cantonment Board v. Smt. Raj Kumari Sachdeva & Ors., MANU/DE/0165/2014
: 2014 X AD (Delhi) 198

Tags : Pay-scale Benefit Grant

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Central Administrative Tribunal

Ashwani Rana and Ors. Vs. Govt. of NCT of Delhi and Ors.

MANU/CA/0655/2017

22.09.2017

Service

It is settled law that, rules once framed, cannot be modified by executive orders

The Applicants were candidates for the post of Head Constable (Male) in Transport Department, for which selection process was initiated by the Respondents, vide Advertisement. They were belonging to the OBC category. They appeared in the written examination. The result of the same was declared in which the applicants obtained first and second rank in the OBC category. Vide letter dated 9th June, 2016, which the applicants claim was received by them on 13th June, 2016, they were informed that, physical test was scheduled for 15-16 June, 2016. The applicants appeared for the physical test on the said dates. However, they were shocked to know that, besides chest and height measurement they were required to participate in a race event in which they had to cover 800 mts in 200 seconds. The applicants claim that, they objected to this by saying that this was not mentioned in the advertisement. However, they were told to participate in the same, failing which they would be excluded from the selection process. They were also told that, instruction regarding the race event had been uploaded on the website of the respondents and the candidates were supposed to peruse the same. The applicants participated in the race event but could not succeed in the same. They submitted a representation to the Respondents in which they stated that the race event was illegal and that the selection could not be declared based on the same.

Rules once framed, cannot be modified by executive orders. Nothing can be added or taken away from the rules by issue of executive orders. While gaps in the Recruitment Rules (RRs) can be covered by issue of executive orders but these instructions must be issued in exercise of Executive Power of the State under Article 162 of the Constitution.

The RRs for the post provided that, the candidates should be of sound health, besides laying down the requirements of height & chest measurement etc. It has also been laid down that, candidates should be free from defect/deformity/disease vision 6/6 without glasses both eyes free from colour blindness. Thus, besides prescribing other requirements, the RRs only say that, the candidate should possess sound health. According to the Respondents, since the RRs did not prescribe how sound health of the candidates has to be judged, taking a cue from the RRs of certain other similar posts, DSSSB introduced the race event, which has been questioned in this OA. From this submission, it is clear that RRs of several other posts quoted by the respondents themselves, do prescribe physical endurance test but the same was missing from the RRs of the posts in question. Thus, it is evident that, Framers of the Rules in their wisdom decided not to incorporate physical endurance test involving race event in the RRs. Moreover, even if the contention of the Respondents that not prescribing race event in the RRs was an inadvertent lapse which left a gap in the RRs, is accepted then this gap could have been filled by issue of executive instructions by the Government of NCT of Delhi. The examining body like the DSSSB on their own could not have prescribed this test. In doing so, they have clearly traversed beyond their jurisdiction and usurped the powers vested in the State Govt. Proper course of action would have been to bring existence of this gap in RRs to the notice of the State Government and request them to issue appropriate instructions. Further, this should have been done prior to commencement of the selection process so that instructions issued could have been duly notified to the candidates in the advertisement issued for the post. Prescribing this test after commencement of the selection process, did amount to changing the rules of the game mid way and was impermissible. Hence, the action of the respondents has not legally sustainable.

Physical endurance test of this nature demands much higher level of fitness than merely being of "sound health". When Framers of RRs did not consider it necessary for the candidates to possess fitness level more than "Sound health" for the post, there was no reason for DSSSB to introduce it on their own. It cannot be accepted that, DSSSB was only laying down a "benchmark" and not changing the rules of the game. Benchmarks could have been laid down only for attributes prescribed in the RRs. A new criterion of selection could not have been introduced by DSSSB.

The action of the Respondents was blatantly illegal and there cannot be any estoppel against law. An illegality committed by the Respondents can be questioned at any stage. Apex Court in the case of Damir Ch. Marak Vs. The State of Meghalaya and Ors., held that, The Petitioner may be barred from filing the writ petition after he had participated in the selection process on the ground that, the result of the selection process is not palatable to him, but the writ petitioner is not barred, even if he participated in the selection process, by principle of estoppels or acquiescence in questioning as to the legality or otherwise of the recommendations of the candidates as there cannot be estoppels against the law."

Thus, Court concluded that, the action of the Respondent DSSSB in prescribing a race event for judging suitability of the candidates for the post in question was against law and beyond their jurisdiction. The applicants by mere participation in the selection process were not estopped from questioning the same since the action of the Respondents was not sustainable under law. Applications are allowed and Respondents are directed to prepare the merit list of selection by ignoring the race event.

Relevant

Damir Ch. Marak Vs. The State of Meghalaya and Ors., [WP(C) No. 61/2014 decided on 20.05.2015]

Tags : Selection Race event Legality

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Supreme Court

Employees State Insurance Corporation and Ors. Vs. Mangalam Publications (I) Private Limited

MANU/SC/1198/2017

21.09.2017

Service

Interim relief paid by the Employer to its employees is not a "gift" or "inam", but is a part of wages

The judgment passed in Insurance Appeal by the High Court of Kerala is called in question in present appeal. By the impugned judgment, the High Court allowed the appeal filed by the Respondent and set aside the order dated passed by the ESI Court. The only question to be considered and decided in present appeal is as to whether the interim relief paid by the Respondent to its employees, during the period from 1st April, 1996 to 31st March, 2000, is to be treated as "wages" as defined under Section 2(22) of Employees State Insurance Act, 1948 and if so, whether the Respondent is liable to pay the ESI contribution.

A plain reading of definition of Section 2(22) of the ESI Act makes it amply clear that "wages" means all remuneration paid or payable in cash to an employee, if the terms of the contract of the employment, expressed or implied, were fulfilled and includes other additional remuneration, if any, paid at intervals not exceeding two months. But payments made on certain contingencies under Clauses (a) to (d) of Section 2(22) of the ESI Act, do not fall within the definition of "wages". The interim relief paid to the employees of the Respondent in the matter on hand, will definitely not fall within the excluded part of Clauses (a) to (d) of Section 2(22) of the ESI Act, as such payment is not travelling allowance or the value of any travelling concession, contribution paid by the employer to any pension fund or provident fund; sum paid to an employee to defray special expenses entailed on him by the nature of his employment; or any gratuity payable on discharge.

The Employees' State Insurance Act is welfare legislation. It has been enacted to protect and safeguard the rights of the working class. Its preamble states that, it is meant to "provide for certain benefits to employees in case of sickness, maternity and 'employment injury' and to make provision for certain other matters in relation thereto". The Employees' State Insurance Fund set up under this Act, survives primarily on contributions paid to the Employees' State Insurance Corporation (the Appellant). All employees insured in accordance with this Act are entitled to benefits under the Act. Undoubtedly, the literal meaning of statutory provisions cannot be ignored. However, in cases where there may be two or more ways to interpret a statutory provision, the spirit of this legislation warrants a construction that benefits the working class.

The inclusive part and exclusive portion of the definition of "wages" clearly indicate that, the expression "wages" has been given wider meaning. Under the definition, firstly whatever remuneration is paid or payable to an employee under the terms of the contract of the employment, expressed or implied, is "wages". Secondly, whatever payment is made to an employee in respect of any period of authorized leave, lock-out etc. is "wages". Thirdly, other additional remuneration, if any, paid at intervals not exceeding two months is also "wages". Any ambiguous expression should be given a beneficent construction in favour of employees by the Court. The Act has to be necessarily so construed as to serve its purpose and objects. This Court in the case of M/s. Harihar Polyfibres v. Regional Director, ESI Corporation, has held that, the definition of "wages" contained in Section 2(22) of the ESI Act is wide enough to include House Rent Allowance, Night Shift Allowance, Incentive Allowance and Heat, Gas and Dust Allowance.

The High Court while allowing the appeal filed by the Respondent has mainly relied upon the office memorandum dated 19th August, 1998 issued by the Department of Public Enterprises, Ministry of Industry, New Delhi, which is not applicable to the facts of this case. The said notification makes it abundantly clear that, the instructions contained in the said office memorandum are applicable to Central Public Sector Enterprises (PSES) only. Admittedly, the Respondent is a private limited company and hence, the instructions contained in office memorandum are not applicable to the Respondent Company.

In the matter on hand, the Appellant claimed ESI contribution only on the amount paid by the Respondent as interim relief to its employees, treating the same as "wages" as per Section 2(22) of the ESI Act. The amount paid as interim relief by the Respondent to its employees definitely falls within the definition of "wages" as per Section 2(22) of the ESI Act. On the other hand, the High Court has observed that, the interim relief paid for the period from 01.04.1996 to 31.03.2000 can only be treated as "ex-gratia payment" paid by the employer to its employees and cannot be treated as "wages" for the purpose of ESI contribution. The High Court has ignored to appreciate that the effect of ESI Act enacted by the Parliament cannot be circumvented by the department office memorandum. The High Court has also failed to appreciate that the payment of interim relief/wages emanates from the provisions contained in terms of the settlement, which forms part of the contract of employment and forms the ingredients of "wages" as defined under Section 2(22) of the ESI Act and that the Respondent paid interim relief, as per a scheme voluntarily promulgated by it as per the notification dated 20.04.1996, issued by the Government of India, in view of the recommendations of "Manisana' Wage Board, pending revision of rates of wages. It was not an ex-gratia payment.

In the case of Employees State Insurance Corporation v. Gnanambigai Mills Limited, Supreme Court observed that, merely because the parties in their compromise chose to term the payment as "ex gratia payments" does not mean that, those payments cease to be wages if they were otherwise wages. As stated above, they were wages at the time that they were paid. They did not cease to be wages after the award merely because the terms of compromise termed them as "ex gratia payments".

The interim relief paid by the Respondent to its employees is not a "gift" or "inam", but is a part of wages, as defined under Section 2(22) of the ESI Act. In view of the above, Supreme Court held that, payment made by way of interim relief to the employees by the Respondent for the period from 1.04.1996 to 31.03.2000 comes within the definition of "wages", as contained in Section 2(22) of the ESI Act, and hence the Respondent is liable to pay ESI contribution. Accordingly, the instant appeal is allowed, the impugned judgment of the High Court is set aside, and that of the ESI Court is restored. The Appellant is held to be entitled to recover the ESI contribution from the Respondent for the period from 01.04.1996 to 31.03.2000 as per demand notice dated 02.11.2000.

Relevant

M/s. Harihar Polyfibres v. Regional Director, ESI Corporation, MANU/SC/0198/1984
: (1984) 4 SCC 324, Employees State Insurance Corporation v. Gnanambigai Mills Limited, MANU/SC/0426/2005
: (2005) 6 SCC 67

Tags : Interim relief Payment Nature

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High Court of Calcutta

Ashok Kumar Bhagnani Vs. Mansur Ahmed and Ors.

MANU/WB/0749/2017

21.09.2017

Tenancy

Tenant could not be penalized for the Advocate's default

The Plaintiff filed the present suit on 22nd November, 2013 claiming a decree for recovery of khas possession of the suit premises, decree for arrear rent, decree for damages and decree for mesne profits. The writ of summons was received by the Defendants on 10th December, 2013. In view of the Defendants failing to comply with the provisions of Sections 7(1) and (2) of the West Bengal Premises Tenancy Act, 1997, the Plaintiff on 2 June, 2014 filed an application under Section 7(3) of the said Act for striking out the defence of the Defendants.

The Defendants filed an affidavit in opposition to the Section 7(3) application wherein it was contended that, they were not obliged to file any application under Sections 7(1) and (2) of the said Act because the suit has been filed before the 'Civil Judge'. During the hearing of the said Section 7(3) application, the Defendants served on the Plaintiff's learned Advocate copies of the applications under Sections 7(1) and (2) of the said Act along with two applications under Section 5 of the Limitation Act. In the said applications for condonation of delay of about 272 days, Defendants contended that, the delay in filing the applications under Sections 7(1) and (2) of the said Act, had been caused by the misguidance of the Learned Advocate of the Defendants whom the Defendants contended, they had subsequently removed as their Advocate. By a common order, Court allowed the applications of the Defendants under Sections 7(1) and (2) of the said Act. The Plaintiff preferred an appeal against the said order. The Appeal Court set aside the said order and remanded back the matter to the First Court for fresh consideration. The short point involved in instant applications is whether or not the Court should condone the delay in filing the applications under Sections 7(1) and (2) of the said Act and allow those applications.

Admittedly, the writ of summons was served on the Defendants on 10 December, 2013. Accordingly, under Section 7(1) of the said Act, the Defendants were obliged to deposit the admitted arrear rent in Court within a month from that date. Further, in case of a dispute regarding the quantum of rent, the Defendants were required to file an application under Section 7(2) of the said Act within a month from 10 December, 2013.

In the case of Transfer Makers of India vs. Nemai Charan Mullick, a learned Judge of this Court held that, the tenant/Defendant had no responsibility for the alleged default in payment of arrear rent. He went on depositing the rent with his Advocate in good faith that the Advocate would do the needful. The tenant could not be penalized for the Advocate's default. Discretion should be exercised in favour of the tenant by condoning the delay and allowing him time and opportunity for making payment of the arrear rent.

In Madhabi Mukherjee vs. Dipali Mitra, the tenant went on depositing the rent regularly with the Rent Controller even after the 2005 and 2006 amendments to the said Act. said deposits were invalid as the same were not made in conformity with the amended provisions of the said Act. For that reason, the Trial Court had struck out the tenant's defence under Section 7(3) of the said Act. The revisional application filed by the tenant was dismissed by this Court. On a review application, this Court held that, the default which the tenant had committed was really a default in technical sense and not a default in real sense as it was a case of irregular deposit and not a case of non-deposit of rent. By following the decision of the Apex Court in the case of M/s. B.P. Khemka Pvt. Ltd., this Court held that, striking out the defence of the tenant for such technical default was not justified. Accordingly, the review application was allowed and the order of the Learned Trial Court striking out the defence of the tenant was set aside.

Court noted that, although there is some logic in the argument of learned Counsel for the Plaintiff against allowing the application for condonation of delay, the explanation furnished by the Defendants cannot be ignored altogether as a cock and bull story. In any event, Courts are generally liberal in condoning the delay in instituting an action. It is a matter of discretion of the Court to be exercised judiciously depending on the facts and circumstances of a case. No strait-jacket formula can be laid down as regards the manner in which such discretion should be exercised. Ordinarily, unless the Court finds gross negligence or laches or inaction or mala fide on the part of a party instituting a lis, the Court exercises the discretion in favour of such party and condones the delay.

The Hon'ble Division Bench had remanded back present matter to the First Court since, the Defendants could not produce before the Court copies of the rent control challans evidencing the deposit of rent by the defendants with the Rent Controller. Copies of such rent control challans have been brought on record by the Defendants by filing supplementary affidavit. Authenticity of such challans has not been disputed by the Plaintiff. Copies of the challans would show that, the defendants had been depositing rent with the Rent Controller from February 2012 till December, 2014. This is not a case of non-deposit of rent but a case of deposit before the wrong forum. The default of the tenant was technical rather than real. It is not that, the defendants defied the statutory mandate altogether or adopted dilatory tactics to avoid deposit of rent as statutorily required. There is no intentional default or total non-compliance with the statutory prescription. It was an erroneous compliance with the statutory dictate. Accordingly, delay in filing the applications under Sections 7(1) and (2) of the said Act, condoned.

Use of the power of the Court to strike out the defence of the Defendants has drastic consequences. Such power is to be used as a last resort against a defiant tenant. Section 7(3) of the said Act, vests this Court with discretion to extend the time period for paying or depositing the amounts referred to in Sections 7(1) and (2). Thus, it is not that, if there is non-payment or non-deposit of such amount by the tenant, the Court has no option but to strike out the defence. The said Act is a beneficial legislation for protection of tenants and any discretionary power vested in the Court by the said statute should, wherever possible, be exercised in favour of the tenant. Since, it is held that, there is no deliberate default or real default on the part of the defendants in the present case, applications under Sections 7(1) and (2) of the said Act are allowed. The defendants shall deposit in Court the entire amount of arrear rent calculated at the rate at which rent was last deposited by the Defendants till date along with interest at the statutorily prescribed rate.

Relevant

B.P. Khemka Pvt. Ltd. vs. Birendra Kumar Bhowmick and Anr. MANU/SC/0783/1987
; Transfer Makers of India vs. Nemai Charan Mullick alias Nemai Chand Mullick MANU/WB/0115/2002
; Madhabi Mukherjee vs. Dipali Mitra MANU/WB/1108/2012

Tags : Delay Condonation Legality

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High Court of Bombay

Pradeep Vs. The State of Maharashtra

MANU/MH/2152/2017

20.09.2017

Criminal

Exception 4 to Section 300 of IPC applies when the act was committed without premeditation, in a sudden fight without the offender having taken undue advantage or acted in a cruel or unusual manner.

In instant appeal, an exception is taken to the judgment and order of Additional Sessions Judge, whereby Appellant is convicted for the offence under Sections 302 and 323 of the Indian Penal Code,1860 (IPC). Appellant fairly concedes that, he is not disputing the occurrence of the incident and assault on the deceased at the hands of the Appellant, as deposed by the prosecution witnesses. However, his only submission is that, the present case cannot fall under Section 302 of IPC, as it stands squarely covered under Section 304 Part I of IPC. According to him, the incident has occurred in a sudden quarrel without any premeditation. It is submitted that, it was not at all a deliberate act on the part of the Appellant and the injuries found on the body of Deceased also do not spell out that, the Appellant has acted in any inhuman or cruel manner.

There is not an iota of evidence on record to show that, there was any sort of aggression or sudden quarrel between the deceased and the Appellant. Conversely, suggestion to that effect was when put up to PW-1, he has flatly denied the same in his cross-examination. It is brought on record through his cross-examination that, there was no scuffling or abuses prior to the stabbing, either between deceased or the Appellant or between PW-1 and the Appellant.

Moreover, if one sees the nature of injuries sustained by the deceased, then it is apparent that these injuries were inflicted on vital parts of body like the chest and abdominal cavity. These two injuries were found fatal as the deceased succumbed to them immediately. He was declared dead, when brought to the hospital. Moreover, Appellant has not stopped after inflicting these two blows only but there was also third blow of the knife inflicted by Appellant on the deceased which has resulted into stab wound over post lateral aspect of his left arm. The Appellant was also inflicting some more blows. However, only because of the physical intervention of PW-1 in obstructing the Appellant by holding the knife, when he was about to assault the deceased again, Appellant could not succeed in doing so and he ran away from the spot. Therefore, it is not a case of single blow which has resulted into the death.

High Court is of opinion that, the nature of injuries which were stab wounds on the vital parts of body is sufficient in itself to infer that these injuries were sufficient in the ordinary course of nature to cause the death. Further, Explanation 2 to Section 299 of IPC sufficiently answers the submission advanced by learned counsel for the Appellant that, if deceased was brought to the hospital immediately, his life could have been saved. As per said Explanation "where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented."

In present case, the nature of injuries, the body part on which they were inflicted and the weapon used, is more than enough to infer that these injuries were sufficient in the ordinary course of nature to cause death. Apex Court in the case of Sukhbir Singh v. State of Haryana, and Shridhar Bhuyan v. State of Orissa, discussed the necessary ingredients for bringing the case under Exception 4 to Section 300 of IPC and held that, "For bringing in operation Exception 4 to Section 300 of IPC, it has to be established that the act was committed without premeditation, in a sudden fight, in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner."

Here, in present case, none of these four ingredients are satisfied. There is no evidence of any fight or quarrel or even of exchange of abuses. There is also no evidence of the act being committed in a heat of passion. It also cannot be accepted that, Appellant has not taken undue advantage or has not acted in a cruel or unusual manner. In the present case, therefore, submission of Appellant that, his case is covered by Exception 4 to Section 300 of IPC cannot be accepted. The Trial Court has appreciated the entire evidence and material on record in its proper perspective. Hence, the conviction of the Appellant recorded by the trial Court under Section 302 and 323 of IPC does not call for any interference. The Appeal is without merits, therefore stands dismissed.

Relevant

State of Rajasthan vs. Shera Ram @ Vishnu Dutta MANU/SC/1428/2011
; Sukhbir Singh vs. State of Haryana MANU/SC/0116/2002
; Sridhar Bhuyan vs. State of Orissa MANU/SC/0594/2004

Tags : Conviction Exception Applicability

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High Court of Himachal Pradesh

Ramesh Kaundal and Ors. Vs. State of H.P. and Ors.

MANU/HP/0734/2017

20.09.2017

Education

Prospectus is a complete code in itself, candidates seeking admission under the Prospects are bound by the terms contained therein

In facts of present case, Department of Medical Education and Research, issued a Prospectus-cum-Application Form for admission to the Postgraduate Degree (MD/MS) Courses, in Indira Gandhi Medical College & Hospital, Shimla, and Dr. Rajindra Prasad Medical College and Hospital, Tanda, District Kangra, Himachal Pradesh. It is not in dispute that in terms of the Prospectus, Petitioners were selected and admitted to the respective courses of their choice, on the basis of their respective merit. Subsequent to the date of admission, but prior to commencement of the academic session, Petitioners approached this Court, assailing the condition of furnishing of Bank Guarantee. The challenge is on the grounds that (a) such condition is unreasonable, irrational, illogical and thus illegal, (b) in the past no such condition was imposed, (c) with more and more doctors being available and willing to serve the State, the condition has lost its purpose, (d) the condition is violative of Articles 14 & 21 of the Constitution of India, inasmuch as it restricts admission only to economically affluent candidates, (e) it casts an unnecessary burden upon the students belonging to economically backward families, (f) necessary co-relation with imposition of condition and admission to the degree course is non-existent, (g) nexus with the object sought to be achieved is missing.

It is a settled principle of law that Prospectus is a complete code in itself. It is also settled principle of law that candidates seeking admission under the Prospects are bound by the terms contained therein. In D.N. Chanchala v. The State of Mysore and others, the Apex Court held that, so long as the rules for selection applicable to the colleges run by the Government do not suffer from any constitutional or legal infirmity, they cannot be challenged as the Government can regulate admission to its own institutions. The Government which bears the financial burden of running the Government Colleges is entitled to lay down criteria for admission in its own colleges and to decide the source from which admission would be made, provided of course, such classification is not arbitrary and has a rational basis and a reasonable connection with the object of the rules. So long as there is no discrimination within each of such sources the validity of the rules laying down such sources cannot be challenged.

Reasons leading to the imposition of the condition in the Prospectus is that, ninety percent of the population in the State of Himachal Pradesh resides in difficult/remote areas. Providing medical health is a constitutional duty and obligation of the State. For such object, doctors, who are Specialists, are posted in remote areas. In the past, there had been instances where instead of serving the State, more so in remote areas, with the completion of their Postgraduate Degree from the Medical Colleges of the State, they left the State for greener pastures. Doctors refused to serve the State for at least five years. Previously, the only condition imposed was furnishing of a bond, amounting to Rs. 15,00,000/-, which was rescinded with the doctors not serving the State. Recovery of money was an issue. In view of past experience, a conscious decision was taken to reduce the amount of bond with a condition of furnishing Bank Guarantee, also linking disbursement of the admissible salary/stipend with the same. Candidates seeking admission to MD/PG courses are not adolescents, graduating from school, seeking admission to the first level of a medical degree. They have already undertaken their studies for five years. Some of them are now serving the State in one capacity or the other. While undertaking studies of a Specialist course, they are paid money as salary or stipend on monthly basis ranging from Rs. 35,000/- to Rs. 45,000/-, during the entire course. Also, State spends huge amount of money in imparting education.

Conditions stipulated in the Prospectus deals with different categories of students, i.e. those, who are in regular service of the State; on contractual basis; and direct candidates being part of the All India Quota. Significantly, direct candidates are also paid stipend at the rate of Rs. 35,000/- per month in the first year, with a corresponding increase of Rs. 5,000/- in the next two successive years. Clause 4.3 exempts direct candidates - from All India Quota (who do not choose to take any stipend during the PG course, shall be exempted from the condition of furnishing the bond). Significantly all candidates, in one capacity or the other, are entitled to receive payments/financial assistance from the State. It is in this backdrop, we find the condition to be absolutely reasonable.

For first three years, Bank Guarantee is for a sum of Rs. 3,00,000/- each and only in the fourth year, the amount is increased to Rs. 4,00,000/-. The Bank Guarantee is to be furnished in stages. Noticeably, the amount of bank Guarantee is less than the amount which a candidate would be receiving as a stipend/salary. Thus, the condition of furnishing of bond as also Bank Guarantee with the release of the amount of salary/stipend and the candidate serving the State for more than five years is with the avowed object of ensuring availability of best medical care and facilities to the natives of the State, residing in remote, far flung and tribal areas.

Scope of judicial review of a policy is well settled. Unless and until the policy fails the test of reasonableness; it is not fair or beneficial to the public at large; it impinges upon Part-III of the Constitution of India; it is whimsical and motivated with an ulterior purpose.

Condition of furnishing a bond as also Bank Guarantee, cannot be said to be unreasonable, irrational, illogical and thus illegal. Simply because in the past such condition was not imposed, that fact itself cannot be a reason good enough not to review the Policy. In fact, it is only on the basis of previous experience that, the Policy came to be altered and the Prospectus amended. Under the Constitution of India, State is to provide good health to all residents, in all areas, be it urban or rural. It is with this object, so to say to check the brain-drain, the condition stands imposed. State does require more and more specialists to be posted in remote/rural areas. Under these circumstances, the condition cannot be said to be violative of Articles 14 & 21 of the Constitution of India. It also cannot be said that the condition is violative of Part-III of the Constitution, as it does not restrict admission only to such of those persons, who are economically affluent. Not only the State is incurring expenditures in imparting education, but is also making payment to them in one form or the other. That apart, the Bank Guarantee is required to be furnished in phases and not in one go. Rs. 3,00,000/- per annum is not a huge amount, which a specialist cannot afford to arrange for and that too for the purpose of Bank Guarantee. Bank Guarantee is furnished against some tangible security, but then a sum of Rs. 3,00,000/- is also not such that no doctor can afford. It does not cast any unnecessary burden upon the students belonging to economically backward families. In any case, none has approached the authorities, expressing such concern. Nexus with the object sought to be achieved is very much evident and explained. There is co-relation between the imposition of condition and admission to a degree course. For after all, State is incurring huge expenditure and as already observed the endeavour is to stop brain-drain and enable the specialists to serve the residents of the State to provide benefits to the residents of the State.

Thus, it cannot be said that, the condition of furnishing Bank Guarantee is unreasonable, irrational, illogical and thus illegal, or that it is violative of Articles 14 & 21 of the Constitution of India. Also, it cannot be said that the said condition casts an unnecessary burden upon the students belonging to economically backward families. Hence, all petitions dismissed.

Relevant

D.N. Chanchala v. The State of Mysore and others, MANU/SC/0040/1971
: 1971(2) SCC 293

Tags : Bank Guarantee Condition Legality

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