High Court of Jammu and Kashmir

Saima Maqbool Vs. Omkar Raina and Ors.

MANU/JK/0618/2018

10.08.2018

Service

No employee has a right of promotion but has only right to be considered for promotion according to the Rules

Present order shall dispose of the application filed by applicant seeking review of the judgment. The writ petition was allowed by present Court holding the promotion granted in favour of the applicant-Respondent No. 2 as Reader by virtue of order dated 27th July, 2009, impugned in the writ petition, not justified in law. Present Court also quashed the promotion of the applicant as Reader granted by the High Court vide its order.

It is trite that, scope of an application for review is much more restricted than that of an appeal. In the absence of any statutory mandate to fill up a vacancy within a specified time, the Rules which are in vogue at the time the avenues of promotion are thrown open would govern such promotions.

It is well settled that, no employee has a right of promotion but has only right to be considered for promotion according to the Rules. Chances of promotion are not condition of service and, therefore, defeasible in accordance with law. Unless, there is statutory mandate to fill up a vacancy within a prescribed period, it is always left to the wisdom and discretion of the employer to fill up the vacancy as and when it deems fit and proper and the employee who has a right of consideration for promotion cannot dictate to his employer that available vacancy should be filled up immediately on occurrence.

It is in the backdrop of legal position, it was concluded that the promotion to the post of Reader in the year 2009, when the applicant was promoted was governed by the Order No. 579 dated 24th October, 2008 issued by Hon'ble the Chief Justice in exercise of powers conferred upon him in terms of Section 6 of the High Court Staff (conditions of Service) Rules, 1968 and the vacancy was to be supplied by way of promotion only from amongst the Section Officers (Adm) having the qualification of graduation in law and in the absence of availability of such candidates, by way of selection from amongst the candidates from other equivalent cadres. The applicant was only a Head Assistant and, therefore, was not holding the post equivalent to Section Officer. Applicant was not eligible to be promoted as Reader. Application dismissed.

Tags : Post Promotion Entitlement

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Supreme Court

Popat & Kotecha Property and Ors. Vs. Ashim Kumar Dey

MANU/SC/0831/2018

09.08.2018

Tenancy

Municipal taxes would be a part of the "rent" payable by tenant to landlord

Present appeal by special leave by the landlord is against the order passed by the Calcutta High Court. Proceeding were under the West Bengal Premises Tenancy Act, 1997 ("1997 Act") for eviction of the Respondent-tenant on the ground that, the tenant had defaulted in payment of his share of municipal tax as an occupier under the provisions of the Kolkata Municipal Corporation Act, 1980 ("1980 Act"). The application filed by the landlord was dismissed by the learned Trial Court which view has been upheld in appeal by the High Court.

Issue raise in present matter is whether after the amendment of the West Bengal premises Tenancy Act by Amendment Act No. 14 of 2001 with effect from 10th July, 2001 [which had incorporated Sub-section (8) to Section 5] whether a tenant who defaults in payment of his/her share of municipal tax as apportioned by the landlord would be in default of rent rendering him/her liable to eviction.

In the present case, under the tenancy agreement municipal taxes were included in the monthly rent payable and any enhancement thereof was to result in enhancement of the monthly rent also. With the amendment made to the Act with effect from 10th July, 2001 and upon incorporation of Sub-section (8) of Section 5, the obligation to pay municipal taxes as an occupier of the premises fell upon the tenant. The relevant clauses in the rent agreement therefore stood superseded by the statutory obligation cast on the tenant by the amendment to the Act.

The Respondent-tenant nowhere denied in any specific terms that, the share of municipal taxes demanded was disproportionate or excessive or otherwise unauthorized in law. While the provisions of the 1980 Act make it very clear that, an occupier as distinguished from the owner i.e. 'person primarily liable' is entitled to pre-assessment notice and to participate in the assessment proceedings and also to question the same by way of an appeal, etc. assessment of a part of the premises in occupation of a tenant or different parts of such premises in occupation of different tenants is not contemplated under the 1980 Act.

Present Court in Gujarati Education Society and Anr. v. Calcutta Municipal Corporation and Ors. held that, municipal taxes would be a part of the "rent" payable by the tenant to the landlord. From the provisions of Section 230 of the 1980 Act, it is clear that the person to be assessed to tax is the person primarily liable to pay i.e. the owner who is vested with the right to recover the portion of the tax paid by him on behalf of the tenant, if required, proportionately to the extent that the value of the area occupied bears to the value of the total area of the property. Under the 1980 Act, in the event of any default on the part of the owner to pay the tax, the rent payable by the tenant(s) is liable to be attached.

In the present case, default on the part of the Respondent-tenant is clear and evident. The obligation to pay municipal taxes on the tenant being over and above the obligation to pay the rent by virtue of the provisions of Section 5(8) of the 1997 Act, the High Court could not have imposed on the landlord the requirement of obtaining a formal order of enhancement of rent from the Rent Controller. Order of the High Court affirming the order of the learned Trial Court is set aside. Appeal allowed.

Tags : Municipal taxes Payment Obligation

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High Court of Bombay

Rajesh Mukundsingh Thakur and Ors. Vs. The State of Maharashtra

MANU/MH/2393/2018

09.08.2018

Property

Investigating officer/agency, has power at any stage of trial, to place before Court such material that would assist investigating agency to put forward its case

By present writ petition, the Petitioners (original accused) have challenged order, whereby an application moved by the investigating officer for sending muddemal property consisting of mobile phones and memory card for forensic examination, has been allowed. The principal grievance of the Petitioners is that, the said property was seized on 14thSeptember, 2012, when the Petitioners were arrested and that after about more than five years, such an application for sending the property for forensic examination could not have been entertained by the trial Court.

The documents or material collected during investigation can be permitted to be produced during the course of trial, even if it was not submitted along with the charge sheet. In the present case, in the application, it has been stated by the investigating officer that although the said property i.e. mobile phones and memory card were seized during investigation, due to inadvertence of the then investigating officer, the same could not be sent for forensic analysis. In the present case, it cannot be said that the trial Court committed an error by allowing the application. The investigating officer/agency, has the power at any stage of trial, to place before the Court such material that would assist the investigating agency to put forward its case. In this situation, the argument of prejudice would not come to the rescue of the Petitioners.

The facts of the present case do show that, while the FIR was registered on 14th September, 2012, the trial has only just begun. The said application was moved after more than five years on 9th January, 2018, as a result of which, now the said mobile phones and memory card will be sent for forensic examination to the laboratory. The pendency of trial for a long period of time and delay in its disposal is certainly causing prejudice to the Petitioners. It is directed that the concerned Forensic Laboratory shall submit report pertaining to the said mobile phones and memory card within six weeks to the trial Court from the date the said property is received in pursuance of the impugned order. It is directed that the trial Court shall complete the trial and pass its judgment within a period of eight months. Petition dismissed.

Tags : Trial Investigation Validity

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High Court of Bombay

Bharti and Ors. Vs. Ratan

MANU/MH/2380/2018

08.08.2018

Criminal

It is a matter of discretion as to since which date increase in maintenance can be made effective from

Present is a revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (CrPC) being aggrieved and dissatisfied by the judgment and order passed by the learned Judge of the Family Court, allowing the application but refusing to enhance the maintenance under Section 127 of the CrPC to the extent as claimed by the Petitioners against the Respondent and also being aggrieved by the direction making such increase from the date of the order.

By passage of time, in any economy where there exists some inflation, the cost of living would also increase proportionately. The Court should have taken judicial notice of the fact that, a government servant under suspension is never paid full salary and if at all he is exonerated of the charges and is reinstated, unless there is a specific order refusing to pay him the difference for the period under suspension, he is usually paid that sum. A specific order in that regard has to be passed by the disciplinary authority. Therefore, the burden was on the Respondent to have established all these facts and that having not being done, the learned Judge has clearly erred in holding that, he had not received anything towards arrears.

Sub-section (2) of Section 125 of CrPC, would clearly indicate that the restriction imposed therein is applicable to the orders which are passed under Sub-section (1) of Section 125 of the CrPC whereas, any increase maintenance which is permissible under Section 127 of the CrPC is regulated by a different provision. There is no such restriction placed on the orders passed under Section 127 of the CrPC regarding increase in the maintenance to be made operational only from the date of the order. Therefore, the restriction placed under Sub-section (2) of Section 125 of the CrPC cannot be read into the provision contained in Section 127 of the CrPC.

Sub-section (2) of Section 125 of CrPC enables a Magistrate to make the maintenance payable from the date of the application. Therefore, it is imperative on the part of the Magistrate to record reasons in either case, when he directs operation of the order from the date of the application and even when he restricts it to the date of the order.

As is laid down in the case of Suman Narayan Niphade & Anr. vs. Narayan Sitaram Niphade & Anr, it is a matter of discretion as to since which date the increase in the maintenance can be made effective from. Such a discretion must be exercised judiciously and must be supported by sound reasons. The learned Judge while restricting the increase only from the date of the order has not assigned cogent and relevant reasons. The learned Judge merely mentioned that, the applicants were already receiving the maintenance. Last increase in maintenance was awarded to the applicants in the year 2010, when the Respondent was under suspension and was not getting the full pay. Subsequently, he was re-insisted in the year 2014 and since thereafter he started getting full pay. It would certainly cause serious prejudice to the applicants, if they are not allowed to reap benefit of such increase in the salary of the Respondent from the date of the application. The learned Judge has not assigned cogent and relevant reasons for not making the increase effective from the date of the application.

The observations of the learned Judge of the Family Court restricting the increase to Rs. 2,700 per month only and its operation to the date of the order is clearly perverse, arbitrary and capricious which has resulted in miscarriage of justice and needs to be corrected under the revisional jurisdiction of this Court. The Revision is allowed.

Tags : Maintenance Enhancement Discretion

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High Court of Jammu and Kashmir

Vishal Vikram Singh Rathore and Ors. Vs. State and Ors.

MANU/JK/0613/2018

08.08.2018

Service

Candidate has no right to insist that, vacancy in the Government service should be filled up immediately on its becoming available

In present batch of writ petitions, challenge has been thrown to the Advertisement Notification No. Pers-A400/2006/7503-403 dated 30th December, 2016 issued by Respondent No. 2 insofar as it provides maximum age of 28 years for direct recruitment and 30 years for in-service candidates as on 1st January, 2016 for being eligible to seek consideration for selection to the post of Sub-Inspector (Executive/Armed) in J&K Police. Some of the Petitioners in the aforesaid writ petitions are candidates from the open market, whereas in some petitions, the Petitioners are in-service candidates serving in the Police Department and other Departments of the State in different capacities.

It is trite law that a candidate has no right to insist that the vacancy in the Government service should be filled up immediately on its becoming available. The employer is well within its right to decide the time when such vacancy(s) available with it is required to be filled up. The Government by way of a policy decision can even freeze the vacancy(s) and direct that no recruitment shall be made for a specified period.

Under the Police Act, 1983 and the rules framed thereunder, the Respondents have been empowered to constitute its own Board of selection and prescribe qualifications and other conditions of recruitment of various ranks including Sub-Inspectors of the Police. As per Section 124 of the Constitution of Jammu and Kashmir, plenary power to regulate the recruitment and conditions of persons appointed to public services and posts in connection with the affairs of the State lies with the Legislature and the same is to be regulated by the Act of the Legislature. It is only in absence of such legislative enactment, the Government has been empowered by virtue of proviso to Section 124 aforesaid to make rules regulating the recruitment and conditions of service of such persons unless the provision in that behalf is made by or under an Act of Legislature.

Neither the Police Act nor the Rules framed thereunder cast upon the Respondent a duty to fill up the posts of Sub-Inspectors or other ranks periodically or within a specific time. In the absence of any mandatory prescription, it would always lie in the wisdom of the Respondents to take a decision with regard to the filling up of the vacant posts and such wisdom and the prerogative of the police cannot be questioned in the extra-ordinary writ jurisdiction under Article 226 of the Constitution of India. The Respondents in their wisdom have fixed the minimum and maximum age as 18 years and 28 years which, by no stretch of reasoning, can be said to be irrational, arbitrary and resulting in hostile discrimination between a Constable and Sub-Inspector. Petitions dismissed.

Tags : Posts Recruitment Eligibility

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Central Administrative Tribunal

N.C. Goel Vs. Govt. of NCT of Delhi and Ors.

MANU/CA/0312/2018

08.08.2018

Service

A government employee is entitled to get his previous service counted for purpose of pensionary benefits

The current application has been filed seeking the relief to Direct the Respondents (DTTE, GNCT of Delhi) to count the previous/past service (w.e.f. 20th November, 1980 to 30th June, 1998) of the Applicant rendered by him in Directorate of Education, GNCT of Delhi, for the purposes of pensionary benefits in terms extant instructions/Rule 26(2) of CCS (Pension) Rules, 1972 and accord all the consequential benefits arising therefrom. Further, Award cost in favor of the Applicant and against the respondents.

The Applicant was appointed to the post of Trained Graduate Teacher (TGT) (Science) on temporary basis in Directorate of Education, on 20th November, 1980. After completing his probation period, he was confirmed on the said post on 20th November, 1982. Thereafter, the Applicant was appointed to the post of Post Graduate Teacher (PGT) (Physics) in 1987 and confirmed by the Respondents w.e.f. 20thNovember, 1982.

It is not disputed that, a government employee is entitled to get his previous service counted for the purpose of pensionary benefits in terms of Rule-26(2) of Rules, 1972. However, there are specific guidelines, which have to be adhered to for this purpose. For the employee to earn the benefit of his past service, it is essential that, a technical resignation from the earlier employer should be available with his current employer to process his case for grant of counting of his past service, for the purpose of pensionary benefits etc. It is not understood as to why the applicant chose to sleep over this requirement for nearly two decades.

As per CCS (Pension) Rules, 1972, there is no provision for tendering technical resignation orally and that the Applicant must provide proof to show that he had tendered the technical resignation by way of an application etc. There is no documentary proof whatsoever that, this technical resignation was tendered, nor has it been found in his service record. In view of the Applicant's inability to show/prove that he actually submitted his technical resignation, which was duly received and accepted by the Respondents, the relief claimed for by him cannot be granted. Application dismissed.

Tags : Pensionary benefits Previous service Entitlement

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